CRIMINAL LAW – Sentencing – Murder – Convicted following trial – Jury invited by applicant’s counsel to return verdict of guilty to defensive homicide – Relevance as mitigating factor to sentence – Borderline intellectual disability – No reliance on principles in Verdins and Tsiaras on plea – New ground of appeal that Verdins principles should have been applied – Circumstances in which an appellate court will entertain arguments abandoned or eschewed on the plea – No evidence of causal connection between intellectual limitations and offending – Whether sentence of 18 years with a non-parole period of 15 years manifestly excessive – Common head sentence for murder – Ratio between head sentence and minimum sentence common to lesser offences generally inappropriate in cases of murder and other very serious crimes attracting high head sentences – Non-parole period in excess of 80 per cent of head sentence not unusual for murder – Absence of reasons for non-parole period did not bespeak error – Application dismissed.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr P F Tehan QC
Greg Duncan Court Lawyer
For the Crown
Mr D A Trapnell SC
Mr C Hyland, Solicitor for Public Prosecutions
BUCHANAN JA:
I will ask Redlich JA to do the first judgment.
REDLICH JA:
On 19 August 2009 the applicant was found guilty by a jury of one count of murder. The facts of the applicant's offending are not in dispute and are set out in the reasons for sentence by the sentencing judge.[1] No more than a very brief summary need now be given.
On an evening in June 2008 the applicant went to a house rented by his cousin where approximately 10 to 12 young people were present. The applicant, who had been drinking during the night and had shown some signs of aggression, had some sort of verbal altercation with the deceased. When the deceased stood up from the couch on which he was seated and moved towards the applicant, apparently with the intention of shaking the applicant's hand, the applicant grabbed a kitchen knife that was sitting on a plate by the side of his chair and stabbed the deceased three times, twice on the front left side of his chest through his left lung and heart, and once on the lower front right area of his chest through his diaphragm and liver. Despite the attendance of ambulance officers, the deceased died of the stab wounds.
The applicant was sentenced to imprisonment for 18 years with a non‑parole period of 15 years. He appealed against his sentence on the grounds that the sentence was manifestly excessive and…
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.
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AGLC
Romero v The Queen [2011] VSCA 45
Case
[2011] VSCA 45
Decision Date
CaseChat Overview and Summary
The case of Romero v The Queen involved the appellant, Romero, who was convicted of murder following a trial. The jury was invited by Romero's counsel to consider a verdict of guilty to defensive homicide as a mitigating factor. The appellant contended that the principles outlined in Verdins and Tsiaras should have been applied, arguing that these principles should have been considered during the plea stage despite being abandoned in that context. The central issue for the court was to determine whether the principles from Verdins should apply in sentencing despite being eschewed at the plea stage, and whether the sentence of 18 years with a non-parole period of 15 years was manifestly excessive.
The court considered the relevance of borderline intellectual disability as a mitigating factor and whether it had a causal connection with the offending. The court noted that there was no evidence establishing such a connection. Furthermore, the court examined the sentence's proportionality, assessing whether the non-parole period of 15 years was excessive relative to the 18-year head sentence. The court concluded that the ratio between the head sentence and the minimum sentence for lesser offences was generally inappropriate for serious crimes like murder, where high head sentences were common, and non-parole periods exceeding 80% of the head sentence were not unusual. The court held that the absence of explicit reasons for the non-parole period did not constitute an error.
Ultimately, the court dismissed Romero's appeal, affirming the trial judge's sentencing decision. The court found that the sentence was not manifestly excessive and that the principles from Verdins did not apply in the sentencing context despite being abandoned during the plea. The decision underscores the importance of proportionality in sentencing and the limited circumstances under which appellate courts will entertain arguments that were previously abandoned or eschewed.