R v Osip - [2000] VSC 225

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Not Restricted

No. 1528 of 1999

THE QUEEN

ROBERT JOHN OSIP

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	26 MAY 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 225

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CATCHWORDS: Sentence – Manslaughter – Criminal Negligence – Shooting in State forest – Youthful offender – Remorse – General deterrence.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	W. Morgan-Payler	Office of Public Prosecutions
For the Accused	S. Gillespie-Jones	John Clements Pty.

HIS HONOUR:

Robert John Osip, you have been found guilty by a jury of the manslaughter of Gary Francis Paterson at Warburton on 19 February 1999. It is necessary to briefly outline the circumstances surrounding the commission of this offence since they are relevant to the sentence I must impose upon you.

On 19 February last year, at about 5.30 p.m., you and a companion, Brian Davey, travelled in your Mazda station wagon to Warburton East. You intended to stalk the Sambar deer which inhabited the State forest. The average adult Sambar deer would stand 50 inches at the shoulder and could be likened to a cow or pony in size. They range in colour from ginger through to grey or even black. The State forest in this area is available for a range of recreational activities, including bush walking, four wheel drive driving, bike riding and picnicking. It is also legally permissible to hunt Sambar deer throughout the year.

You parked your vehicle at a point where the Warburton-Woods Point Road intersected with a forestry road called McDonald Track. You both commenced walking up the track carrying your weapons and ammunition. Mr Davey had a .303 rifle and you had a Springfield service rifle which had been re-stocked and fitted with a .270 Winchester calibre Whitworth barrel. The .270 Winchester cartridge used in that weapon leaves the muzzle at a velocity of 3060 feet per second and the firearm has a range of over 3,000 metres. In short, this was a powerful weapon designed to kill medium to large game.

You had obtained a firearms licence following the successful completion of a firearms safety examination on 8 December 1997.

You had visited the McDonald Track on 30 to 40 occasions over about a year and would normally spend about five or six hours walking up gullies and along ridges and animal tracks. However, it is a difficult task to stalk and kill a Sambar deer, and, in that time, you had not shot one.

As you were walking down McDonald Track on this afternoon, you heard a noise coming from within an area of trees and scrub that sloped away from the McDonald Track to your left. You said to Mr Davey, "Did you hear that?" he did not respond but kept on walking while you went over to the side of the track to investigate. At this point you had travelled only about 180 metres from the main road.

Mr Davey regarded what he described as "the hunting…

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 Osip

Details

AGLC: R v Osip [2000] VSC 225
Case: [2000] VSC 225
Decision Date: 26 May 2000

CaseChat Overview and Summary

In the matter of R v Osip, the respondent was convicted of manslaughter by criminal negligence following a fatal shooting incident in a state forest. The case was heard by the Supreme Court of Victoria. The respondent, a youthful offender, shot and killed an individual during a recreational outing. The circumstances surrounding the shooting were such that the respondent claimed it was accidental, and he showed remorse for his actions.

The central legal issue before the court was whether the respondent's actions constituted manslaughter by criminal negligence. The court was required to consider the respondent's age, the presence of remorse, and the need for general deterrence in arriving at a just sentence. Additionally, the court needed to weigh the mitigating factors against the severity of the offence to determine an appropriate punishment.

The court found that the respondent's actions demonstrated a significant departure from the standard of care expected of a reasonable person in the circumstances, leading to the conclusion that the offence constituted manslaughter by criminal negligence. The respondent's youth and expressions of remorse were considered mitigating factors. However, the court emphasised the importance of general deterrence in cases involving firearms and irresponsible behaviour. Ultimately, the court imposed a sentence that balanced these considerations, taking into account the unique circumstances of the case.

The final orders of the court included a custodial sentence for the respondent, reflecting the need to uphold public safety and deter similar offences in the future. The court also noted the importance of rehabilitation and reintegration for youthful offenders, directing the respondent to participate in relevant programs during their incarceration.

Orders