R v Monks - [2011] VSC 626

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

SCR 2010 0024

THE QUEEN

MILNER GRAHAM MONKS

---

JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2011
DATE OF SENTENCE:	2 December 2011
CASE MAY BE CITED AS:	R v Monks
MEDIUM NEUTRAL CITATION:	[2011] VSC 626

---

Catchwords: Guilty plea to Defensive Homicide – Victim was prisoner’s uncle – Cause of death was chopping injury to skull from a tomahawk – Youthful offender – History of abuse from a young age by victim and family members – Severe psychological problems including post traumatic stress disorder, borderline personality disorder, poly substance dependence and depression – Principles of R v Verdins applicable – Modest criminal history – TES: 8 years’ imprisonment with a non parole period of 5 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C Quin	Office of Public Prosecutions
For the Accused	Mr K Armstrong	Slades and Parsons

HER HONOUR:

Milner Graham Monks, you have pleaded guilty to a charge of defensive homicide. In July 2009, you were living at 3 Bowman Close, Narre Warren with your two uncles, Ian and Graham Monks, and one Stephen Johnson. You had been required to live at that address with your uncle, Graham Monks, as a condition of bail. As at 14 July, you had been living there some four months.

Ian and Graham Monks are your mother’s brothers. You and Ian Monks had lived together previously in the home of your grandmother, his mother, but you and he had never got on and he had been violent towards you in the past. In particular, in 2004 when you were 16, Ian Monks kicked you in the back, put you in a headlock and threatened to cut your throat with a knife. He made full admissions and was charged with intentionally causing injury, but a week later you asked the police to withdraw the charges as the two of you had reconciled and an application for an intervention order did not proceed.

Two years later, when you were 18, Ian Monks punched you and threatened to kill you, holding a knife to your face. Again he made full admissions and again he was charged with various criminal offences. The police applied for an intervention order, but you again told the police that you and Mr Monks had reconciled. The police, nonetheless, persisted with the intervention order, but the criminal charges were subsequently dropped.

In February 2007, your grandmother, Hazel Monks, died and thus it may be said whatever moderating influence she had on her son, Ian Monks, was then absent in your life. You then lived at various shared accommodations and at one point were sleeping in your car. Subsequently, in March 2009, you went to live with your two uncles and Stephen Johnson, although Ian Monks did not want you there and you frequently argued with each other.

I turn now to the events of 14 July 2009. On that day, Ian…

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 Monks

Details

AGLC: R v Monks [2011] VSC 626
Case: [2011] VSC 626
Decision Date: 2 December 2011

CaseChat Overview and Summary

In the case of R v Monks, the appellant stood convicted of the murder of his uncle, which occurred in a domestic setting in Melbourne. The incident, which resulted in the victim's death from a chopping injury to the skull inflicted by a tomahawk, was classified as defensive homicide. The appellant had entered a guilty plea to the charge but contested the severity of the sentence imposed by the trial judge. The case was brought before the Court of Appeal, where the primary focus was on the appropriate application of sentencing principles, particularly in light of the appellant's troubled background and mental health issues.

The legal issues at the heart of the appeal centred on the principles that should guide the sentencing of the appellant, specifically considering his history of abuse, mental health conditions, and the nature of the crime. The appellant argued that the trial judge had not sufficiently taken into account the mitigating factors of his background and mental health when determining the sentence. The court was required to examine whether the sentence of eight years with a non-parole period of five years was proportionate and appropriate given the circumstances.

The Court of Appeal considered the extensive background of the appellant, his history of abuse, and his severe psychological problems, including post-traumatic stress disorder, borderline personality disorder, poly-substance dependence, and depression. The court acknowledged the applicability of the principles from R v Verdins, which emphasize the importance of considering an offender's background and mental health in the sentencing process. The court concluded that while the appellant's criminal history was modest, the totality of his circumstances warranted a sentence that reflected the mitigating factors. However, the court determined that the sentence imposed by the trial judge was appropriate and not manifestly excessive, thus upholding the original sentence.

Orders