The Queen v Nelson - [2013] VSC 72

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2012 0088

THE QUEEN

CLARENCE STANLEY NELSON

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JUDGE:	NETTLE JA
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	25 February 2013
DATE OF SENTENCE:	28 February 2013
CASE MAY BE CITED AS:	The Queen v Nelson
MEDIUM NEUTRAL CITATION:	[2013] VSC 72

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CRIMINAL LAW – Murder – Sentencing – Premeditated vigilante killing of suspected paedophile – 69 year old offender in poor mental and physical health – Reduced moral culpability – Plea of guilty at first opportunity – Genuine remorse and negligible prospect of re-offending – Previously unblemished character – Total effective sentence of 18 years with a non-parole period of 12 years – Director of Public Prosecutions v Whiteside and Dieber (2000) 1 VR 331 referred to, R v Verdins (2007) 16 VR 269 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K G Gilligan	Mr C Hyland, Solicitor for Public Prosecutions
For the Accused	Mr L C Carter	Robert Stary Lawyers

HIS HONOUR:

Clarence Stanley Nelson, you have pleaded guilty to the murder of Graeme Benney at Wallan on 23 November 2011. It remains for me to sentence you.

The facts

You were born on 4 June 1943. In 1961, you married Lynette Nelson and you and she together had four children, now aged between 40 and 50 years. The deceased was born on 4 February 1949 and, on 7 June 1969, he married your wife’s first cousin, Sandra Bennett. Together, they had two children. As a result of the close relationship between your wife and Sandra Bennett, you and the deceased at one stage spent a considerable amount of time together, and later you and your wife and children and the deceased and Sandra Bennett and their children regularly visited each other’s home. On those occasions, when the adults were socializing, the children were often put to bed together in one bedroom.

In 1989, the deceased separated from Sandra Bennett and, on 30 October 1993, he remarried to Pamela Benney. At first, they lived together in Wallan and later they moved to Hidden Valley, which is a residential suburb close by. At the time of his death, the deceased was still living with Pamela Benney in Hidden Valley.

In or about 2000, one of your daughters (I shall call her ‘AB’) divulged to her sister (whom I shall call ‘CD’) that, when she was a child, the deceased put his hands down her pants. CD replied that the deceased had done the same thing to her and also that your brother, Gregory Nelson, had sexually abused her when she was between the ages of eight and 15.

On Fathers’ Day 2000, CD told you that Gregory Nelson had sexually abused her as a child and, when you asked her whether there had been penetration, she signified by nodding that there had been. Later, CD told you that the deceased had also molested her as a child. Neither allegation was reported…

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 The Queen v Nelson

Details

AGLC: The Queen v Nelson [2013] VSC 72
Case: [2013] VSC 72
Decision Date: 28 February 2013

CaseChat Overview and Summary

The appellant, an elderly man, was convicted of murder for killing a man he believed to be a paedophile. The case came before the court for sentencing, where the appellant's age, health, and remorse were considered. The court had to determine an appropriate sentence that balanced the need for deterrence and denunciation with the appellant's personal circumstances.

The primary legal issue was whether the court could reduce the sentence based on the appellant's advanced age, poor health, and remorse. The court considered whether the appellant's actions, though extreme, warranted a lesser sentence due to his diminished moral culpability. The court also had to consider whether the appellant's unblemished prior record and genuine remorse should influence the sentence.

The court determined that the appellant's actions, while egregious, warranted a reduced sentence. The court noted the appellant's advanced age and poor health, his genuine remorse, and the negligible risk of re-offending. The court found that the appellant's plea of guilty and unblemished prior record also supported a reduced sentence. The court referred to previous cases where similar factors had resulted in reduced sentences. Ultimately, the court sentenced the appellant to 18 years in prison, with a non-parole period of 12 years.

The court's final orders included the sentence of 18 years imprisonment with a non-parole period of 12 years. The court also noted that the sentence reflected the unique circumstances of the case, including the appellant's age, health, and remorse. The court's decision was based on a careful consideration of the relevant legal principles and the specific facts of the case.

Orders