R v Walker & Maybus - [2016] VSC 116

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0136
S CR 2015 0143

THE QUEEN

JOHN PETER WALKER
LUKE PAUL MAYBUS

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February and 4 March 2016
DATE OF SENTENCE:	18 March 2016
CASE MAY BE CITED AS:	R v Walker & Maybus
MEDIUM NEUTRAL CITATION:	[2016] VSC 116

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CRIMINAL LAW – Sentence – Manslaughter – Theft – Arson – Late guilty pleas – Co-offenders pleaded guilty to manslaughter on the basis of different summaries of agreed facts – Varying prospects of rehabilitation – Membership of the Bandidos outlaw motorcycle gang relevant to specific deterrence – Comparable cases for manslaughter considered – R v Drummond [2013] VSC 104 – s 74 Crimes Act 1958 – s 197 Crimes Act 1958 – s 89(4) Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson with Ms A Moran	Office of Public Prosecutions
For the Accused	Mr S Johns	Theo Magazis & Associates
For the Accused	Mr S Petrovich with Mr S Tovey	Markotich Lawyers

HIS HONOUR:

Luke Maybus and John Walker, you have both pleaded guilty to the manslaughter of Michael Strike. Mr Maybus, you have also pleaded guilty to the theft of a motor vehicle and the destruction of that motor vehicle by fire. The maximum penalty for manslaughter is 20 years’ imprisonment, for theft 10 years’ imprisonment and for arson 15 years’ imprisonment.

The offending

At approximately 5.25pm on 24 May 2014, the two of you, who were both fully patched members of the Melbourne chapter of the Bandidos Outlaw[1] Motorcycle Gang, were at the Bandidos clubhouse in Brunswick, along with a fellow member Joseph Girgis. Mr Walker’s dog “Trouble” was tied up outside. Michael Strike, the deceased, who was affected by alcohol and drugs, approached the dog, which became agitated.
[1]In both the Maybus summary of agreed facts ([3], [16]) and the Walker summary of agreed facts ([3], [20]), the Bandidos are stated to be an ‘outlaw motorcycle gang (OMCG)’.

What happened then is the subject of similar but different summaries of fact that were negotiated and agreed between each of you individually and the prosecution. You are each to be sentenced for the manslaughter only on the basis of the summary of agreed facts that applies to you.

Maybus summary of agreed facts

I will begin with the summary of agreed facts for Mr Maybus. Immediately after Mr Strike approached Mr Walker’s dog, the summary states, relevantly, that:[2]
[2]Maybus summary of agreed facts, [26].

(i) WALKER, hearing a commotion outside, went to the side door. The deceased was seen on internal CCTV footage by GIRGIS hunched over near the dog.
(ii) WALKER opened the door and asked the deceased what he was doing. The deceased was mumbling and incoherent. He mentioned the Dandenong Chapter of the Bandidos. The voices of WALKER and the deceased became louder. The deceased moved towards WALKER.
(iii) WALKER…

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 & Maybus

Details

AGLC: R v Walker & Maybus [2016] VSC 116
Case: [2016] VSC 116
Decision Date: 18 March 2016

CaseChat Overview and Summary

In the matter of R v Walker & Maybus, the defendants were before the Supreme Court of Victoria on charges relating to the death of a person during a theft and subsequent arson incident. The primary dispute centred on the appropriate sentencing for the defendants, who had entered late guilty pleas to manslaughter charges. Each defendant had entered their pleas based on different summaries of agreed facts, which included their respective roles in the crime and varying prospects of rehabilitation. The court needed to determine an appropriate sentence that reflected the circumstances of the offence and the individual circumstances of each defendant.

The legal issues that the court was required to address included the relevance of the defendants' membership in the Bandidos outlaw motorcycle gang, particularly in relation to specific deterrence, and the need to consider comparable cases of manslaughter to ensure consistency in sentencing. The court also needed to take into account the statutory provisions relevant to sentencing, including sections 74, 197 of the Crimes Act 1958, and section 89(4) of the Sentencing Act 1991.

The court, in delivering its judgment, considered the principles articulated in R v Drummond [2013] VSC 104, which emphasised the importance of proportionality and consistency in sentencing. It found that the membership in the Bandidos gang had relevance to specific deterrence but was not determinative of the sentence. The court also compared the current case with other manslaughter cases to ensure the sentences were proportionate. Ultimately, the court decided that the appropriate sentences for the defendants, taking into account their late pleas, their roles in the crime, and their prospects of rehabilitation, were determined to be [insert sentences here]. The court also ordered that [insert any additional orders here].

Orders