R v Perry - [2014] VSC 534

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0039, 0050

THE QUEEN

GAVIN PERRY

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June, 6 August 2014
DATE OF SENTENCE:	27 October 2014
CASE MAY BE CITED AS:	R v Perry
MEDIUM NEUTRAL CITATION:	[2014] VSC 534

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CRIMINAL LAW – Sentencing – Murder contrary to Crimes Act 1958 s 3A – Intentionally causing injury – Armed robberies – Accused stabbed two jewellery store owners (one fatally) in course of committing armed robbery – Two further separate armed robberies – Accused on parole at time of offending – Early guilty plea – Long criminal history – Antisocial personality disorder – In protective custody – Sentenced to total effective sentence of 27 years’ imprisonment, with a non-parole period of 23 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford QC Mr J Ayres	Solicitor for Public Prosecutions
For the Accused	Mr J McMahon Ms B Franjic	Greg Thomas

HER HONOUR:

Gavin Perry, you have pleaded guilty to one charge of murder, one charge of intentionally causing injury, and three charges of armed robbery.

The most serious of those charges arose out of events which took place on Friday, 12 July 2013 at Hastings.

On that day, you and your then partner, Rhiannon Bailey, spent the morning in the Frankston area, before having lunch in High Street, Hastings. While waiting for your lunch to be prepared, you suggested to Ms Bailey that the two of you go into a nearby jewellery store, called the Jewel Shed, to have an earring appraised. When you went into the store, you were served by one of the owners, Bridget O’Toole.

You stayed there for about five minutes. As you were leaving, you made a comment about having made the counter dirty with your fingerprints; you put your hand inside your t-shirt and wiped down the glass counter. You then used your elbow to close the store door behind you. There is no dispute that you did these things to avoid leaving fingerprints, as you were already planning on robbing the store later.

After collecting your lunch, you and Ms Bailey returned to Crib Point, where you were living at the time. In the early afternoon, you drove back into Hastings alone, in Ms Bailey’s silver Commodore sedan. You spent about two hours playing the pokies at a local hotel.

CCTV footage shows you entering the Safeway supermarket at Hastings around 4.38 pm. You stayed in the store for a couple of minutes, and left without stopping at the registers. Evidence later gathered by the police indicates that this was when you obtained the 20 cm carving knife that you used in the Jewel Shed incident.

You entered the Jewel Shed just before 5.00 pm. You had your hoodie top pulled over your head, and were wearing dark sunglasses. You produced a large carving knife from inside your tracksuit pants. You pushed your way…

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 Perry

Details

AGLC: R v Perry [2014] VSC 534
Case: [2014] VSC 534
Decision Date: 27 October 2014

CaseChat Overview and Summary

The case of R v Perry involved the defendant who was convicted of murder, contrary to section 3A of the Crimes Act 1958, in addition to other armed robbery offences. The defendant, who was on parole at the time of the offending, had stabbed two jewellery store owners, resulting in one fatality, during the course of an armed robbery. The defendant also committed two further separate armed robberies. The accused, who has a long criminal history and an antisocial personality disorder, was in protective custody at the time of sentencing. The court was required to determine the appropriate sentence, taking into account the defendant's early guilty plea, his criminal history, and the severity of the crimes committed.

The primary legal issue before the court was the appropriate sentence for the defendant, who had been convicted of murder and multiple armed robberies. The court had to consider the principles of sentencing as outlined in the Sentencing Act 1991 (Vic), including the need for punishment, deterrence, rehabilitation, and protection of the community. The court also had to consider the specific circumstances of the case, including the defendant's early guilty plea, his criminal history, and the impact of his antisocial personality disorder.

In determining the sentence, the court considered the principles of totality, which require that the cumulative sentence for all offences should not be excessive. The court noted the gravity of the murder offence and the defendant's long criminal history, which included previous armed robberies and a history of violence. The court also considered the defendant's early guilty plea, which resulted in a discount to the sentence. Ultimately, the court sentenced the defendant to a total effective sentence of 27 years’ imprisonment, with a non-parole period of 23 years. The court emphasised the need for punishment and deterrence, as well as the protection of the community, in arriving at its decision.

The final orders of the court included a sentence of 27 years’ imprisonment for the defendant, with a non-parole period of 23 years. The court also ordered that the defendant's sentence for the murder offence be served concurrently with his sentences for the armed robberies. The court further ordered that the defendant remain in protective custody during his imprisonment.

Orders