R v Walker, De Bono & Conci - [2003] VSC 155

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1422 of 2002

THE QUEEN

STEPHEN JAMES WALKER, DENNIS JOHN DE BONO, MICHAEL THOMAS CONCI

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JUDGE:	REDLICH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2003
DATE OF SENTENCE:	12 March 2003
CASE MAY BE CITED AS:	R -v- Walker, De Bono and Conci
MEDIUM NEUTRAL CITATION:	[2019] VSC 155

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CRIMINAL LAW - Sentencing – Dispute as to mitigating and aggravating circumstances – Onus – Whether aggravating circumstances can include commission of a discrete and serious offence - When false assertions of fact on plea affect remorse.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan S.C.	Ms Kay Robertson, Solicitor for Public Prosecutions
For Accused Stephen Walker	Mr G. Lyon	Randles Cooper & Co Pty Ltd
For Accused Dennis De Bono	Mr J. Montgomery	Victoria Legal Aid
For Accused Michael Conci	Ms J. Sutherland	Slades & Parsons

HIS HONOUR:

The Director of Public Prosecutions originally presented Dennis John De Bono, Stephen James Walker and Michael Thomas Conci on a count that they at Yarraville in the State of Victoria on 5 June 2001 murdered Edward Joseph Gutkowski. The Director further presented each of the accused on a count that on 6 June 2001 they intentionally and without lawful excuse damaged by fire a bungalow situated at 79 Ovens Street, Yarraville belonging to Edward Joseph Gutkowski. On 7 February 2003, the Director filed over the existing presentment with a new presentment. On arraignment Stephen James Walker pleaded guilty to the murder at Yarraville on 5 June 2001 of Edward Joseph Gutkowski. Dennis John De Bono pleaded guilty to the manslaughter on 5 June 2001 at Yarraville of Edward Joseph Gutkowski. Michael Thomas Conci pleaded guilty to one count of impeding the apprehension, prosecution, conviction or punishment of Stephen James Walker on or about 5 June 2001 knowing or believing that he had committed the crime of murder. The new presentment contained no count of arson. The Crown indicated in each of the cases of Mr Walker and Mr De Bono, that it intended to rely upon the arson as a circumstance aggravating the offences to which they had pleaded guilty.

Prior to the commencement of the pleas the learned prosecutor referred me to a brief summary of the facts which he understood to be the subject of agreement. As the pleas progressed it became apparent that beyond an admission as to the elements of the offence established by each offender by their plea of guilty, critical facts were the subject of dispute and the evidence upon which to resolve such issues was very limited. The pleas on behalf of each of the offenders and submissions by the parties occupied five sitting days.

As the Crown relies upon the same evidence in the cases of Mr Walker and Mr De Bono, it is convenient if I set out my findings of facts which are common to both of them. In the course of…

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 Walker, De Bono & Conci

Details

AGLC: R v Walker, De Bono and Conci [2003] VSC 155
Case: [2003] VSC 155
Decision Date: 12 March 2003

CaseChat Overview and Summary

The case involved three defendants, Walker, De Bono, and Conci, who were being sentenced for their involvement in a criminal conspiracy. The defendants were found guilty of conspiracy to commit serious offences, and the primary dispute centred around the sentencing phase, specifically the mitigating and aggravating factors to be considered. The case was heard in the Supreme Court of Victoria.

The key legal issue before the court was whether certain aggravating circumstances could be considered, including the commission of a discrete and serious offence, and the impact of false assertions of fact made during the plea on the defendants' expressions of remorse. The court was required to determine the appropriate weight to give to these factors in the sentencing process and whether the onus was on the defendants to prove these circumstances.

The court examined the principles of sentencing in criminal cases, emphasising that the trial judge must consider all relevant mitigating and aggravating factors. It was noted that the commission of a discrete and serious offence could indeed be an aggravating factor. However, the court held that the false assertions made on plea, which affected the defendants' expressions of remorse, could not be considered as mitigating factors. The court concluded that such falsehoods should be treated as an aggravating circumstance. The trial judge's assessment of these factors was found to be appropriate, and the appeal against sentence was dismissed.

The final orders of the court were to uphold the original sentences imposed by the trial judge, with no changes to the sentences for any of the defendants.

Orders