Criminal law – Sentence appeal – Incitement to murder – Relevance of personality disorders – Relevance of absence of treating psychologist – Victim impact statement - Relevance of forgiveness by victim – Rehabilitation.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr T. Gyorffy
K. Robertson, Solicitor for Public Prosecutions
For the Applicant
Mr D. Hallowes
Robert Stary & Associates
BUCHANAN, J.A.:
I have had the advantage of reading the draft reasons for judgment prepared by Eames, J.A. and Smith, A.J.A.
I agree with their Honours that the sentencing judge erred in failing to give sufficient weight to the victim impact statement of the applicant’s husband. I also agree with Smith, A.J.A. that the sentencing judge erred in apparently attributing less weight to the evidence of Mr Davis because Ms Leonard was not called as a witness. While I accept that the weight to be given to Mr Davis’ opinion was a matter for the sentencing judge to evaluate after seeing and hearing him give evidence, and that he was not obliged to accept Mr Davis’ opinion unreservedly, I think that the absence of evidence from Ms Leonard did not of itself depreciate the evidence of Mr Davis. Like Eames, J.A. I am reluctant to conclude that the sentencing judge did not give due weight to the prospects of the applicant’s rehabilitation because he did not refer to the attitude of the victim and remorse in the context of rehabilitation.
According, I agree that the applicant has established error in the sentencing process. I would re-sentence the applicant as their Honours propose.
EAMES, J.A.:
I gratefully adopt the summary of the facts and issues set out in the judgment of Smith, A.J.A. Whilst I am in substantial agreement with much of his Honour’s analysis of the arguments advanced before us there are some areas in which as a matter of emphasis or conclusion I am not wholly in agreement.
Section 23 of the Sentencing (Amendment) Act 1993 introduced s.32I(1)(ba) to the Crimes Act1958. The amendment followed the decision of the High Court in Dimozantos v. The Queen[1] which had resolved earlier doubt as to the appropriate sentence for incitement to murder by determining that the maximum penalty was 15 years imprisonment. The amendment prescribed that the penalty, thereafter, would
be life imprisonment or such other term as fixed by the court. The new penalty provisions reflected the view of Parliament that whilst this can be an extremely serious offence there might be a wide divergence in the level of seriousness of such offences which fall for sentencing. Having regard to the many mitigating features which were relied upon by counsel in submissions to the learned sentencing judge the sentence imposed in this…
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.
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AGLC
R v Skura [2004] VSCA 53
Case
[2004] VSCA 53
Decision Date
CaseChat Overview and Summary
The case of R v Skura involved the defendant, Skura, appealing his sentence for incitement to murder. The court of appeal was tasked with reviewing the original sentencing decision, focusing on the factors considered and whether they were appropriate. The central issue in this appeal was the weight given to Skura's personality disorders and the absence of his treating psychologist at the sentencing hearing. Additionally, the court needed to consider the relevance of a victim impact statement, particularly the forgiveness expressed by the victim, and its impact on the sentencing decision.
The court examined the trial judge's approach to sentencing, emphasising the importance of a balanced and comprehensive assessment of all relevant factors. It was noted that while personality disorders can be significant in sentencing, the absence of the treating psychologist might have limited the understanding of the full extent of these disorders. The court also addressed the relevance of the victim's forgiveness, determining that while it could be a mitigating factor, it should not necessarily override other considerations such as the seriousness of the offence and the need for deterrence. The appeal court concluded that the sentencing judge had not adequately balanced these factors, leading to an appealable error.
In light of the above, the appeal court determined that the original sentence was inappropriate and ordered a re-sentencing hearing. The court emphasised the need for a thorough consideration of all mitigating and aggravating factors, including the defendant's mental health and the victim's perspective, to ensure a just outcome. The re-sentencing was to be conducted with a proper appreciation of the complexities involved, ensuring that all relevant evidence, including expert psychological input, was adequately considered.