R v ZN - [2012] VSC 616

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0032 of 2012

THE QUEEN

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2012
DATE OF SENTENCE:	12 December 2012
CASE MAY BE CITED AS:	R v ZN
MEDIUM NEUTRAL CITATION:	[2012] VSC 616

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CRIMINAL LAW – Murder – Plea of guilty – Circumstances of offending – Youth offender – Psychological and Psychiatric history – History of abuse of alcohol.

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APPEARANCES:	Counsel	Solicitors
For the Crown (Plea) (Sentence)	Mr G. Silbert SC Mr P. Rose SC	Office of Public Prosecutions
For the Accused	Mr T. Kassimatis	Dean Cole & Associates

HIS HONOUR:

ZN, on 7 November 2012 you pleaded guilty before me to the murder Latjuor Gatkuoth on 6 September 2011.

You were born on 15 September 1993 and at the time of the murder you were 17, almost 18 years old. You are now 19 years of age. Your relative youth is a very important consideration in sentencing you. It is the fact that you were 17 at the time of offending which requires me to anonymise you by using initials. Your relative youth is also a very important consideration in sentencing you.

The crime for which you now stand convicted is both brutal and senseless. On Tuesday 6 September 2011 you stabbed Latjuor Gatkuoth to death by stabbing him a number of times to the upper body with a broken glass bottle. The stabbing took place on a landing in a stairwell between Levels 1 and 2 of the Dandenong Plaza Car Park near Clow Street, Dandenong. Mr Gatkuoth then fell four or five metres into the basement of the stairwell.

Both you and Mr Gatkuoth were part of a group of young men of African background who spent much of your time around the Dandenong Plaza area. In opening the case the prosecution set out in detail some of the background to the events.

On the evening of Sunday 4 September, you and your friends including Mr Gatkuoth were consuming alcohol and listening to music in the reserve in Stuart Street, Dandenong. According to a number of your friends, you approached Mr Gatkuoth and slapped him in the face trying to get him to fight you but he refused. You also produced a pair of scissors at some stage and threatened Mr Gatkuoth. You told your friend Torit Dak that you wanted to kill Mr Gatkuoth because he had pissed you off.

On Tuesday 6 September you, Mr Gatkuoth and others were at Dandenong Plaza. Your group went to the Safeway Liquor store where it was observed by CCTV footage that you and another young man went into the store. The other young man purchased a cask of wine and you purchased another bottle of alcohol. The group then went to the car park stairwell to consume the alcohol. That was at about 6.00pm. There were about 11 of you in the group all up, other…

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 ZN

Details

AGLC: R v ZN [2012] VSC 616
Case: [2012] VSC 616
Decision Date: 12 December 2012

CaseChat Overview and Summary

In the matter of R v ZN, the appellant, ZN, was charged with the murder of an individual, the victim. The matter was heard in the Supreme Court of Victoria. ZN pleaded guilty to the charge of murder, but sought to mitigate his culpability by presenting various factors surrounding the circumstances of the offence. These factors included his youth at the time of the offence, his extensive psychological and psychiatric history, and his history of alcohol abuse. The court was required to weigh these factors in determining an appropriate sentence for the appellant.

The primary legal issue the court had to address was the extent to which ZN's background and circumstances should mitigate his sentence. The court had to consider the principles of sentencing in the context of murder, including the need for denunciation and deterrence, as well as the principles of rehabilitation and proportionality. In determining the appropriate sentence, the court had to balance these principles with the mitigating factors presented by the appellant.

The court acknowledged the appellant's youth and history of abuse and trauma as mitigating factors, but also emphasised the gravity of the offence and the need for appropriate denunciation and deterrence. Ultimately, the court determined that while the mitigating factors were significant, they did not warrant a departure from the general principle that murder carries a mandatory life sentence. The court sentenced the appellant to life imprisonment, with a non-parole period of 20 years. This sentence reflected the seriousness of the offence, while also taking into account the appellant's mitigating circumstances.

Orders