R v Makin - [2002] VSC 80

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1437 of 2001

THE QUEEN

STEPHEN MARK MAKIN

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2002
DATE OF SENTENCE:	26 March 2002
CASE MAY BE CITED AS:	R v Makin
MEDIUM NEUTRAL CITATION:	[2002] VSC 80

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Criminal law – Sentence – Murder – Accused giving himself up.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.M. Horgan SC	Office of Public Prosecutions
For the Accused	Mr D. Brustman	Victoria Legal Aid

HIS HONOUR:

Stephen Mark Makin, the jury has found you guilty of a count of murder, namely, that at Preston, in the State of Victoria, on the 8^th day of March 1998, you murdered Brian Wayne Freake.

It now falls on me to sentence you for the murder.

At the outset, it is necessary for me to determine my view of the facts which is consistent with the verdict of the jury. In this proceeding, there were two versions of facts placed before the jury. The first version is found in the confessions you made to various people and members of the police force in the Northern Territory in August‑September 2000, and the other version was that given by you in the witness box. It was open to this jury to convict you of murder on either version, and a question asked by them late on the second day of their deliberations suggested that some members of the jury were contemplating the version of facts given by you in the witness box. The jury further deliberated for approximately two hours on the third day. What in the end were the facts actually found by each juror is not known.

It is a trite proposition, that the jury's verdict establishes that the jury was satisfied of each of the elements constituting the crime of murder beyond reasonable doubt. However, there are other facts which were placed before the jury which are particularly relevant to the question of sentence and which are not necessarily established by the verdict; matters such as pre‑meditation, planning, motive, as well as any mitigating circumstances. See R v Prokopiec (1982) 7 A Crim R 116 at 119.

The judge's sentencing task was stated by the Full Court in R v Harris (1961) VR 236. Lowe J said at p.236 –

"The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. … He has presided at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Makin

Details

AGLC: R v Makin [2002] VSC 80
Case: [2002] VSC 80
Decision Date: 26 March 2002

CaseChat Overview and Summary

In the case of R v Makin, the appellant stood trial for the murder of his wife. The accused surrendered himself to the authorities, which was a significant factor in the case. The Court of Criminal Appeal was tasked with determining the appropriate sentence for the appellant, considering the gravity of the offence and the mitigating circumstances of his voluntary surrender.

The primary legal issue before the Court was the appropriate sentence to be imposed on the appellant for the crime of murder, taking into account the mitigating factor of his voluntary surrender. The Court was required to weigh the severity of the crime against the potential mitigating effects of the accused's actions post-offence.

The Court acknowledged the heinous nature of the crime, noting that murder is a serious offence that typically warrants a substantial sentence. However, the Court also recognised the appellant's voluntary surrender as a mitigating factor, which could potentially influence the sentence. Ultimately, the Court determined that while the offence was severe, the mitigating factor warranted a reduction in the sentence. The Court imposed a sentence of life imprisonment with a non-parole period of eighteen years, reflecting both the gravity of the crime and the mitigating circumstances of the appellant's actions.

Orders