R v Pain - [2017] VSC 454

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0024

Between:

THE QUEEN
and
MAXWELL JOHN PAIN	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 May & 8 June 2017
DATE OF SENTENCE:	9 August 2017
CASE MAY BE CITED AS:	R v Pain
MEDIUM NEUTRAL CITATION:	[2017] VSC 454

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CRIMINAL LAW – Sentence following trial – Murder – Accused believed (wrongly) that his wife and her son-in-law were having an affair – Accused drove to son-in-law’s property and shot him once in the abdomen with a shotgun, killing him – Whether shooting pre-meditated – Whether accused intended to shoot and kill or cause really serious injury – Offence at upper end of the middle range of gravity of murder – Impact of crime on deceased’s loved ones – Accused originally pleaded guilty to murder but plea withdrawn – Limited remorse – Sensible concessions made by accused in running trial – Reasonable prospects of rehabilitation – Limited criminal history – Some positive character traits – Whether accused’s delusional disorder mitigates sentence – Hardship of imprisonment as a result of accused’s physical disability – Importance of general and specific deterrence, denunciation, just punishment and rehabilitation – Current sentencing practices for murder – Sentence of 23 years’ imprisonment with a non-parole period of 18 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L. Taylor QC	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Vines Lawyers

HIS HONOUR:

Overview

For a long time, Maxwell John Pain has been a very suspicious and jealous man. Throughout more than ten years of marriage to Tracy Bush, Mr Pain often suspected his wife of infidelity with almost any man who glanced at her. The accusations and disharmony that followed often led to short separations in the marriage. In 2014, Mr Pain even came to believe, wrongly, that his wife was having an affair with her son-in-law David Cameron Paris. So incensed by the thought was Mr Pain that he threatened to others to ‘kneecap’ Mr Paris, to ‘get’ him and to ‘smash his hands up’.

On 9 June 2014, sick and tired of Mr Pain’s accusations and behaviour, Ms Bush resolved to leave her husband permanently. That day, she left their home in Neilborough, just outside Bendigo, and went to live with her daughter Rebecca Lambert, Mr Paris and their child in nearby Raywood.

Filled with anger because of his mistaken belief about an affair that never was, and fixed with the belief that his wife might have left him for good, on the evening of 10 June 2014, Mr Pain drove his Ford utility to Mr Paris’s home armed with a shotgun and a rifle. Prior to his arrival, he sent a text message to Mr Paris saying, ‘I’m on my way, Davey boy.’ It is unknown whether Mr Paris saw the message.

After reaching the property and driving down the long driveway past the house, Mr Pain did a U-turn…

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 Pain

Details

AGLC: R v Pain [2017] VSC 454
Case: [2017] VSC 454
Decision Date: 9 August 2017

CaseChat Overview and Summary

In the case of R v Pain, the respondent, Pain, was charged with the murder of his son-in-law, who he shot with a shotgun, killing him. Pain had mistakenly believed that his wife and the deceased were having an affair. Pain drove to the deceased’s property with the intent to kill him. The matter was heard in the Supreme Court of Victoria. Pain originally pleaded guilty to murder but later withdrew his plea. The court had to decide the appropriate sentence for Pain, taking into account various factors such as the premeditation of the offence, Pain’s intent, the impact on the deceased’s family, his remorse, concessions made during the trial, his criminal history, character traits, and his delusional disorder.

The court considered whether Pain’s delusional disorder could mitigate his sentence, as well as the hardships he would face in prison due to a physical disability. The court also weighed the principles of general and specific deterrence, denunciation, just punishment, and rehabilitation. The court noted that the offence was at the upper end of the middle range of gravity for murder and that Pain had limited remorse and a limited criminal history. The court took into account Pain’s concessions during the trial and his reasonable prospects of rehabilitation. The court also considered the impact of the crime on the deceased’s loved ones and the need for denunciation of the offence.

The court found that a sentence of 23 years’ imprisonment with a non-parole period of 18 years was appropriate. The court considered the aggravating and mitigating factors and determined that this sentence was necessary to achieve the aims of sentencing for murder. The court acknowledged the gravity of the offence and the need for general and specific deterrence, as well as denunciation, but also took into account Pain’s concessions during the trial, his reasonable prospects of rehabilitation, and the hardships he would face in prison due to his physical disability. The court did not consider Pain’s delusional disorder to be a significant mitigating factor in determining the sentence. The final orders of the court were that Pain be sentenced to 23 years’ imprisonment with a non-parole period of 18 years.

Orders