R v Sheen - [2016] VSC 235

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0180

THE QUEEN
v
MARK SHEEN	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 March, 26 April 2016
DATE OF SENTENCE:	12 May 2016
CASE MAY BE CITED AS:	R v Sheen
MEDIUM NEUTRAL CITATION:	[2016] VSC 235

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CRIMINAL LAW – Sentence – Guilty Plea - Manslaughter – Criminal Negligence – Fail to render assistance at scene of accident – Pedestrian, motorcycle collision – Collision preceded by object being thrown at motorcycle – Intention when victim approached – Charges of possess drug of dependence – Possess prohibited weapon without approval – Remorse and Plea of guilty – Prospects of rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J BB Lewis	Office of Public Prosecutions
For the Accused	Mr S Bayles with Ms N A Kaddeche	Emma Turnbull Lawyers

HIS HONOUR:

Mark Sheen, on 2 March 2016, at Geelong, you were arraigned on two charges. The first charge was a charge of murder of the deceased man Gary Faull at Corio on 4 April 2015. You pleaded not guilty to that charge. The second charge was that, on the same date, you failed to render assistance at the scene of an accident, which was the event that caused the death of Mr Faull. You pleaded guilty to that offence. A jury was empanelled and the trial commenced.

On 4 March 2016, you were re-arraigned and again pleaded not guilty to the charge of murder but guilty to the alternative charge of manslaughter. Your plea of guilty to manslaughter was accepted by the prosecution in full satisfaction of the indictment albeit on a factually contested basis. The contest essentially related to which form of manslaughter you should be sentenced for – unlawful and dangerous act or criminal negligence. I will return to this issue later in these reasons for sentence, but I have concluded that to the extent that it is necessary to categorise your offending, manslaughter by criminal negligence is the most appropriate description.

On 16 March 2016, at your plea hearing, you additionally pleaded guilty to two charges of possessing a drug of dependence, namely methamphetamine and 4-Butanediol. You also pleaded guilty to a number of summary offences including one count of possessing a prohibited weapon, namely a pair of knuckle dusters,[1] as well as one count of driving whilst disqualified.[2]
[1]Section 5AA Control of Weapons Act 1990 (Vic).
[2]Section 30 Road Safety Act 1986 (Vic).

During your plea hearing I heard submission by the Crown Prosecutor Mr Lewis, followed by submissions made on your behalf by Mr Bayles of counsel.

The maximum penalty for the offences to which you have pleaded guilty are as follows:

(i) Manslaughter - 20 years’ imprisonment; [3]
[3]Section 5 Crimes Act 1958 (Vic)

(ii) Failing to render assistance at the scene of an accident – 10 years’ imprisonment;[4]
[4]Section 61(3) Road Safety Act 1986 (Vic)

(iii) Possessing a drug of dependence – 5…

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 Sheen

Details

AGLC: R v Sheen [2016] VSC 235
Case: [2016] VSC 235
Decision Date: 12 May 2016

CaseChat Overview and Summary

In the matter of the Crown versus Sheen, the respondent was brought before the court in response to a serious incident involving a pedestrian and a motorcycle collision. The respondent had pleaded guilty to charges of manslaughter, possessing a drug of dependence, and possessing a prohibited weapon without approval. The court was required to determine the appropriate sentence, taking into account the mitigating factors such as the plea of guilty, the remorse expressed by the respondent, and the prospects of rehabilitation.

The legal issues before the court were primarily centred around the nature and circumstances of the manslaughter, as well as the impact of the mitigating factors on the sentence. The court considered the respondent's criminal negligence in causing the collision, as well as the failure to render assistance at the scene of the accident. Additionally, the court needed to evaluate the relevance of the charges of possessing a drug of dependence and a prohibited weapon without approval, and how these factors influenced the overall culpability and potential sentence.

The court found that the respondent's actions leading up to the collision displayed a significant degree of criminal negligence. Despite the presence of mitigating factors such as the guilty plea, expressed remorse, and prospects of rehabilitation, the court emphasised the gravity of the offence and the need for deterrence. In weighing these considerations, the court determined that the appropriate sentence should reflect both the severity of the crime and the mitigating factors presented.

Ultimately, the court imposed a sentence that considered the totality of the circumstances, balancing the need for punishment with the potential for rehabilitation. The precise nature of the sentence was left to the discretion of the court, taking into account the various legal and factual considerations presented in the case.

Orders