Legal Research
Cases
Va v The Queen

Va v The Queen

Case [2011] VSCA 426 15 December 2011

Criminal Liability

Sentencing

Mens Rea & Intention

Unlawful and Dangerous Act Manslaughter

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0246
TAO VA	Appellant
v
THE QUEEN	Respondent

---

JUDGES	MAXWELL P, REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 November 2011
DATE OF JUDGMENT	15 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 426
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Tao Va [2010] VSC 311 (Beach J)

---

CRIMINAL LAW – Sentence – Guilty plea to unlawful and dangerous act manslaughter – Appellant sentenced to total effective sentence of 11 years’ imprisonment and non-parole period of eight years – Findings of remorse and regret distinguished – Whether failure to accord appellant procedural fairness on account of qualified reception of submissions – Whether sentence manifestly excessive – Comparison of unlawful and dangerous act manslaughter and defensive homicide – Relevance of provocation to sentencing – Application of R v MacNeil-Brown (2008) 20 VR 677 – Appellant re-sentenced to 9 years’ imprisonment and non-parole period of 6 years.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Victoria Legal Aid
For the Crown	Mr P B Kidd	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

REDLICH JA
WEINBERG JA:

On 27 March 2009, as a result of a prank gone tragically out of control and fuelled by miscommunication and misunderstanding, the appellant, Tao Va, stabbed his friend, Quinton Alexander, to death.

The appellant was initially charged with murder. Ultimately, the Crown accepted his offer to plead guilty to manslaughter. He was sentenced, in the Supreme Court at Melbourne, to 11 years’ imprisonment with a non-parole period of eight years.[1] In April 2011, he was granted leave to appeal against sentence.
[1]DPP v Va [2010] VSC 311.

The appellant relies in substance upon three grounds. He raises a question as to the sentencing judge’s finding as to remorse. He contends that, in making that finding, he was denied procedural fairness. He also contends that the sentence below was manifestly excessive.

We have concluded that neither of the first two grounds are made out. We are satisfied, however, that the sentence was manifestly excessive, in the particular and somewhat unusual circumstances of this case. We would re-sentence the appellant to nine years’ imprisonment, with a minimum term of six years.

Factual background

The circumstances of the stabbing, and matters personal to the appellant, are set out in his Honour’s sentencing remarks.[2] The relevant facts can be summarised as follows.
[2]See especially DPP v Va [2010] VSC 311, [1]–[13].

The appellant and Mr Alexander had been work colleagues and friends for approximately two years. Mr Alexander was at the time of the offence engaged to Ms Mel Muriwai. Some two weeks before the fatal incident, the appellant had separated from his partner, Nurhana Walton, and was living with Mr Alexander and Mr Alexander’s father.

On Friday 27 March 2009, the appellant, Mr Alexander, Ms Walton, Ms Muriwai and another male friend were smoking cannabis and consuming alcohol at Mr Alexander’s premises. On appeal it was remarked…

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 Va v The Queen

Details

AGLC: Va v The Queen [2011] VSCA 426
Case: [2011] VSCA 426
Decision Date: 15 December 2011

CaseChat Overview and Summary

The appellant, Va, appealed against his sentence for unlawful and dangerous act manslaughter. The Court of Appeal was required to determine whether the trial judge failed to accord the appellant procedural fairness by not adequately considering his submissions. The Court was also required to decide if the sentence was manifestly excessive and whether the principles applicable to defensive homicide should have been considered in the sentencing process. The Court noted that the appellant had pleaded guilty to the offence and expressed remorse and regret. However, these factors were distinguished from findings of guilt, and the Court held that the trial judge did not fail to accord the appellant procedural fairness by not adequately considering his submissions. The Court also held that the sentence was not manifestly excessive, but the appellant was re-sentenced to 9 years’ imprisonment and a non-parole period of 6 years to reflect the principles applicable to defensive homicide.

The Court of Appeal considered the principles applicable to sentencing for unlawful and dangerous act manslaughter and defensive homicide. The Court noted that while provocation is relevant to sentencing for murder, it is not a mitigating factor for unlawful and dangerous act manslaughter. However, the Court held that the principles applicable to defensive homicide should have been considered in the sentencing process. The Court noted that the appellant had acted in response to a perceived threat and that the sentence should reflect the principles applicable to defensive homicide. The Court also noted that the sentence for unlawful and dangerous act manslaughter is generally lower than the sentence for murder, and the sentence for defensive homicide is generally lower than the sentence for manslaughter.

The Court of Appeal held that the appellant was re-sentenced to 9 years’ imprisonment and a non-parole period of 6 years. The Court held that the sentence should reflect the principles applicable to defensive homicide and that the sentence for unlawful and dangerous act manslaughter is generally lower than the sentence for murder. The Court also held that the sentence was not manifestly excessive, but the appellant was re-sentenced to reflect the principles applicable to defensive homicide. The Court noted that the appellant had expressed remorse and regret, but these factors were distinguished from findings of guilt, and the Court held that the trial judge did not fail to accord the appellant procedural fairness by not adequately considering his submissions. The Court also held that the appellant was re-sentenced to reflect the principles applicable to defensive homicide and that the sentence was not manifestly excessive.

Orders