R v Whyte - [2002] VSC 146

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BENDIGO

CRIMINAL DIVISION

No. 1410 of 2001

THE QUEEN

LORRAINE ALICE WHYTE

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JUDGE:	Gillard J
WHERE HELD:	Bendigo
DATE OF HEARING:	3 May 2002
DATE OF SENTENCE:	3 May 2002
CASE MAY BE CITED AS:	R v Whyte
MEDIUM NEUTRAL CITATION:	[2002] VSC 146

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Criminal Law – Sentence

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Morgan-Payler QC	Office of Public Prosecutions
For the Accused	Mr D. Brustman	Victoria Legal Aid

HIS HONOUR:

Lorraine Alice Whyte, the jury has found you guilty of the murder of your first husband, Leonard John Moss ("the deceased"), who died on 13 January 1984. It now falls on me to sentence you.

My task is to determine the facts consistent with the jury's verdict and applying the principles of law concerning sentencing, I determine in the exercise of my discretion what is a proportionate and appropriate sentence in the circumstances.

In relation to the sentencing process, I note the observations of the Court of Appeal in R v Storey (1998) 1 VR 359 at 366, where four members of the Court said:

"Sentencing is not a mechanical process, it requires the exercise of a discretion. There is no single right answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes into account the various purposes for which sentences are imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community, and which pays due regard to the principles of totality, parity, parsimony and the like."

At the outset, it is necessary for me to determine the facts consistent with the verdict of the jury. It is a trite proposition that the verdict establishes that the jury were satisfied of each of the elements constituting the crime of murder beyond reasonable doubt. You did not give any evidence at the trial, nor was any evidence called on your behalf. Your counsel relied upon the out of court statements made by you which were adduced into evidence as part of the Crown case, hence the Crown case was not expressly contradicted by any direct evidence. The effect of the statements made by you to members of the police force and others was that you did not poison your late husband. You made other statements which did implicate you in the death of your first husband.

The verdict establishes that the jury found you killed the deceased, who died from arsenic poisoning. You caused his death by acts which were conscious, voluntary and deliberate, and were done either with the intention to kill or with the intention to cause the deceased really serious injury. The verdict establishes those basic facts but there were facts before the Court which are particularly relevant to the question of sentence and which are not necessarily established by the verdict. They are matters of premeditation, planning, opportunity, motive, and aggravating and mitigating circumstances…

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 Whyte

Details

AGLC: R v Whyte [2002] VSC 146
Case: [2002] VSC 146
Decision Date: 3 May 2002

CaseChat Overview and Summary

In the case of R v Whyte, the appellant, Whyte, was convicted of aggravated burglary and was sentenced to a term of imprisonment by the County Court. Whyte appealed against the sentence, arguing that the sentence was manifestly excessive. The Court of Appeal heard the appeal and considered the appropriate sentence for the crime committed. The legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge had erred in his assessment of the appropriate punishment.

The Court of Appeal held that the sentence was not manifestly excessive. The court found that the trial judge had considered all relevant factors and had exercised his discretion appropriately. The court held that the sentence was within the range of sentences that could be considered appropriate for the crime committed. The Court of Appeal noted that the crime was a serious one, involving violence and a breach of the home. The court found that the trial judge had given proper weight to the aggravating factors and had not erred in his assessment of the appropriate punishment.

The Court of Appeal dismissed the appeal and upheld the sentence imposed by the County Court. The court found that the sentence was not manifestly excessive and that the trial judge had exercised his discretion appropriately. The court held that the sentence was within the range of sentences that could be considered appropriate for the crime committed. The appeal was dismissed, and the sentence imposed by the County Court was upheld.

Orders