R v PP - [2003] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 353 of 2002

THE QUEEN
	v.
PP

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2003
DATE OF JUDGMENT:	7 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 100

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Criminal law - Sentencing - Manslaughter by unlawful and dangerous act - Stabbing by boy aged 15 - Whether judge erred in imposing sentence of imprisonment rather than detention in youth training centre - Whether non-parole period of four years manifestly excessive in relation to head sentence of six years' imprisonment - Youth and exceptional prospects of rehabilitation - Desirability of facilitating early release from adult prison system - Applicant re-sentenced to five years' imprisonment with non-parole period of two-and-a-half years - Children and Young Persons Act 1989, ss.3, 137-139, 244, 276 - Sentencing Act 1991, ss.3, 5(1), (3) and (4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr R. Richter, Q.C. Mr B.J. Bourke	Haines & Polites

WINNEKE, P.:

I agree, for the reasons given by Callaway, J.A., that the application for leave to appeal against sentence should be allowed, that the sentence passed below be quashed, and that the sentence proposed by his Honour be substituted.

CALLAWAY, J.A.:

The applicant was presented in the Supreme Court on one count of murder. After a trial occupying 11 days, he was found not guilty of murder but guilty of manslaughter. He had no previous convictions or findings of guilt. The learned trial judge heard a plea for leniency on his behalf and took time for consideration. On 23^rd December 2002 his Honour sentenced the applicant to six years' imprisonment with a non-parole period of four years. A declaration was made regarding 33 days' pre-sentence detention.

An application for leave to appeal against conviction was abandoned. The applicant seeks leave to appeal against sentence on six grounds, namely:

"1.The sentence was manifestly excessive.
2.Despite the matters referred to in the reasons for sentence the learned trial judge did not give proper weight to -
·    the question of remorse,
·    the character and conduct prior to the incident of the accused,
·    the remorse expressed by the accused,
·    the overwhelming evidence in relation to rehabilitation,
·    the contents of the pre-sentence report obtained from the Department of Human Services,
·    the time at which it was agreed the applicant had offered a plea of guilty to manslaughter - at the latest the 21^st May of 2002, but probably earlier,
·    the evidence of the psychologist Wendy Crouch in relation to the steps taken by the applicant to demonstrate his remorse

and indicate his desire to completely rehabilitate himself,
· the totality of the character evidence called on behalf of the applicant and in particular that of the headmasters of two high schools.
3.That in view of the fact that the judge imposed the sentence on the basis of it being…

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 PP

Details

AGLC: R v PP [2003] VSCA 100
Case: [2003] VSCA 100
Decision Date: 7 August 2003

CaseChat Overview and Summary

In the matter of R v PP, the defendant was convicted of manslaughter by an unlawful and dangerous act, having stabbed another person during an altercation. The dispute in the case revolved around the sentencing imposed by the trial judge, which was contested by the defendant on the grounds that it was inappropriate given the defendant's age and the prospects for rehabilitation. The case was heard in the Court of Criminal Appeal.

The central legal issues addressed by the court were whether the trial judge had erred in imposing a sentence of imprisonment rather than detention in a youth training centre, and whether the non-parole period of four years was manifestly excessive in relation to the head sentence of six years' imprisonment. The court was required to consider the principles of sentencing for young offenders, the potential for rehabilitation, and the desirability of facilitating early release from the adult prison system.

The Court of Criminal Appeal found that the trial judge had erred in imposing a sentence of imprisonment rather than detention in a youth training centre, given the defendant's age and exceptional prospects for rehabilitation. The court also found that the non-parole period of four years was manifestly excessive in relation to the head sentence of six years' imprisonment. The court considered the principles of sentencing for young offenders and the potential for rehabilitation, and determined that the defendant should be re-sentenced to five years' imprisonment with a non-parole period of two-and-a-half years.

The Court of Criminal Appeal ordered that the defendant be re-sentenced to five years' imprisonment with a non-parole period of two-and-a-half years. The court considered the principles of sentencing for young offenders and the potential for rehabilitation, and determined that the original sentence was manifestly excessive. The court emphasised the importance of facilitating early release from the adult prison system for young offenders with exceptional prospects for rehabilitation.

Orders