R v Whybrow - [2020] VSC 233

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0094

THE DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
TREVOR WHYBROW	Accused

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2020
DATE OF SENTENCE:	4 May 2020
CASE MAY BE CITED AS:	R v Whybrow
MEDIUM NEUTRAL CITATION:	[2020] VSC 233

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CRIMINAL LAW – Sentencing – Murder – Offender, intoxicated, awoke to find victim in bed with him – Offender believed victim was attempting to sexually molest him – Offender’s Post-Traumatic Stress Disorder from childhood rape triggered – Offender punched victim repeatedly and fatally in the face – Intention to cause really serious injury – No intent to kill – No premeditation – Mid-range example of the offence –Verdins principles 1 & 5 applied – Significant evidence of good character of offender – Evidence of remorse despite plea of not guilty – Standard sentence offence – Sentencing Act 1991 (Vic) ss 5(2)(daaa), 5A, 5B, Crimes Act 1958 (Vic) s 3(2) – R v Verdins (2007) 16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Porceddu	Office of Public Prosecutions
For the Accused	Mr D Gibson	Victoria Legal Aid

HIS HONOUR:

Trevor Whybrow, a jury convicted you of the murder of Barry Moffatt on 27 May 2018.

The jury necessarily rejected your arguments that, when you killed Moffatt, you lacked murderous intent and that you acted in lawful self-defence.

The maximum penalty for murder is life imprisonment.

Circumstances of offending

Let me summarise the circumstances of your offending.

On 27 May 2018, Brian Tilley, your mother’s partner, was celebrating his birthday. He invited a few friends to celebrate the occasion with him at his unit at 29 McKean Street, Mooroopna. The guests were your mother Rose Whybrow (whom, hereafter, I will refer to as Rose), Joyce Kennedy, Moffatt and you. Tilley, Rose and Moffatt all lived in separate units at 29 McKean Street.

It was around 2pm when you, Rose and Moffatt arrived at Tilley’s unit. Kennedy arrived a couple of hours later. Throughout the afternoon Tilley, Moffatt and you were all drinking heavily — beer and spirits — and by the time Kennedy arrived, the three of you were intoxicated. But throughout the celebrations, everyone was on amicable terms.

Kennedy left before 8 o’clock. Not long after she left, you said you wanted to go home, but Rose persuaded you to have a rest at her unit nearby. She and Moffatt physically supported you as the four of you walked to her unit, which was a one-bedroom unit. Rose and Moffatt placed you on her bed fully clothed. Rose removed your shoes and then went outside with Moffatt where Tilley was waiting.

After a little while, Moffatt told Rose he was going to check on you, but he did not return. Rose went inside and found Moffatt lying on the bed next to you fully clothed. Both of you appeared to be asleep. Rose went back…

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 Whybrow

Details

AGLC: R v Whybrow [2020] VSC 233
Case: [2020] VSC 233
Decision Date: 4 May 2020

CaseChat Overview and Summary

In the case of R v Whybrow, the offender, Whybrow, was convicted of the murder of a victim. The circumstances surrounding the murder were that Whybrow, who had been intoxicated, awoke to find the victim in bed with him. Believing the victim was attempting to sexually assault him, Whybrow’s Post-Traumatic Stress Disorder, stemming from a childhood rape, was triggered. In a state of heightened emotion, Whybrow punched the victim repeatedly and fatally in the face. The offender did not intend to kill but rather to cause really serious injury, and there was no premeditation involved. The case came before the court to determine the appropriate sentence for this mid-range example of the offence.

The legal issues the court had to address included whether the principles set out in Verdins applied to this case and the extent to which mitigating factors such as the offender's good character and evidence of remorse could be considered. The court was also required to interpret and apply the relevant provisions of the Sentencing Act 1991 (Vic) and the Crimes Act 1958 (Vic). The principles in Verdins, particularly principles 1 and 5, were relevant in determining the appropriate sentence, taking into account the offender’s state of mind and the mitigating factors presented.

The court applied the Verdins principles, acknowledging the unique circumstances of this case. It considered the significant evidence of Whybrow’s good character and the display of remorse despite his plea of not guilty. These mitigating factors, combined with the mid-range nature of the offence, led the court to determine an appropriate sentence within the standard range for the offence. The court also considered the statutory provisions, particularly sections 5(2)(daaa), 5A, and 5B of the Sentencing Act 1991 (Vic), and section 3(2) of the Crimes Act 1958 (Vic). Ultimately, the court found that the sentence should reflect the principles of justice and proportionality, taking into account all the relevant factors.

The court ordered that Whybrow be sentenced within the standard range for murder, considering the mitigating factors and the principles set out in Verdins. The exact sentence was determined by the court but was within the guidelines provided by the relevant legislation and case law.

Orders