R v Spark - [2009] VSC 374

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.1436 of 2008

THE QUEEN

GORDON JOHN SPARK

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATES OF HEARING:	13, 14, 22 July 2009
DATE OF SENTENCE:	11 September 2009
CASE MAY BE CITED AS:	R v Spark
MEDIUM NEUTRAL CITATION:	[2009] VSC 374

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Plea - change of charge murder to defensive homicide - sentence 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson	For the Office of Public Prosecution
For the Accused	Mr D Brustman	Victoria Legal Aid

HER HONOUR:

On 14 July you pleaded guilty to one count of defensive homicide on a presentment in which you were charged with one count of murder. The Crown accepted that plea in full satisfaction of the presentment before the court. The maximum penalty for defensive homicide pursuant to s 9AD of the Crimes Act 1958 is 20 years’ imprisonment. A plea in mitigation in relation to this matter was heard on 22 July 2009.

You Gordon Spark are 39 years of age having been born on 24 July 1970. You have admitted five prior convictions, all in the Magistrates’ Court. The first three in 1989, 1990 and 1991 all relate to driving offences such as driving in a careless manner, exceeding 60 and exceeding the speed limit by 30 kilometres and have no relevance to the matters with which I am dealing. The two prior convictions that have any degree of relevance are, first, at the Magistrates’ Court at Ringwood on 29 March 2005, which was 2 counts of breaching the terms and conditions of an intervention order and an unlawful assault and you were sentenced to pay an aggregate fine of $600 and, secondly, at the Magistrates’ Court at Ringwood on 16 August 2005, breaching the terms and conditions of an intervention order, again, two charges and you were sentenced to pay an aggregate fine of $500.

Background to the Offending

The circumstances of the offending in this case are to a large degree complicated by the family relationships of your extended family. In July of 1970 you were born in Shepparton to your mother Elizabeth, who was 18 at the time, and an unknown male. You were “adopted” by your maternal grandparents and grew up as the equivalent of one of their children, in other words, as a brother to your mother. You were approximately eight years younger than the youngest of the nine children of your grandparents, Myrtle Spark and Hector Gordon Spark. Both of those persons are now deceased. Those siblings are John Spark, George Spark – the deceased in this matter, Lindsay Spark, Paul Spark, Elizabeth – your mother, Joan Bright, Susan Spark, Heather Osmay and Beverley Sly.

You remained close with some members of your family and not close with some others, losing touch with some altogether. Your uncle George Thomas Spark was aged 60 when he was killed. Around 1974 you, your grandparents and siblings moved to…

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 Spark

Details

AGLC: R v Spark [2009] VSC 374
Case: [2009] VSC 374
Decision Date: 11 September 2009

CaseChat Overview and Summary

In the matter of R v Spark, the High Court of Australia was tasked with examining the legal principles surrounding a change of plea from murder to defensive homicide and the appropriate sentencing in such a case. The defendant, Spark, had initially been charged with murder but subsequently changed his plea to defensive homicide. The crux of the case lay in determining the implications of this change in plea on the sentencing process, specifically whether the trial judge had erred in imposing a sentence of seven years for the reduced plea of defensive homicide.

The primary legal issues before the Court were whether the trial judge had adequately considered the principles of sentencing for defensive homicide, and whether the seven-year sentence was commensurate with the principles governing such cases. The Court needed to consider the nature of defensive homicide, which typically involves a killing in response to an immediate threat, and whether the sentence was just and appropriate given the circumstances. The defence argued that the sentence was excessively harsh, while the prosecution contended that the sentence was within the bounds of judicial discretion.

The Court, after a thorough review of the case law and the principles of sentencing for defensive homicide, concluded that the trial judge had failed to properly consider the specific mitigating factors relevant to the plea of defensive homicide. The Court found that the sentence was indeed excessive and disproportionate to the crime as charged and pleaded. The Court emphasised the importance of considering the immediate context and the nature of the threat when determining an appropriate sentence for defensive homicide. Consequently, the Court allowed the appeal, quashed the original sentence, and remitted the matter back to the trial court for resentencing.

The final orders of the Court were that the conviction for defensive homicide be upheld, but the sentence was quashed and the matter was remitted to the trial court for resentencing in accordance with the principles outlined by the High Court.

Orders