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Wilio v The King

Wilio v The King

Case [2023] VSCA 88 27 April 2023

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0072

NORDEN WILIO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2023
DATE OF JUDGMENT:	27 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 88
JUDGMENT APPEALED FROM:	The Queen v Norden Wilio [2022] VSC 86

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CRIMINAL LAW – Appeal – Conviction – Statutory murder – Act of violence causing death – Applicant shot accomplice during attempted armed robbery – Whether act of violence notionally that of deceased – Whether deceased capable of self-murder – Leave to appeal refused.

Crimes Act 1958, ss 3A, 323 and 324; R v Butcher [1986] VR 43; DPP v Hansen (2020) 287 A Crim R 117; R v Galas (2007) 18 VR 205; DPP v Perry (2016) 50 VR 686; IL v The Queen (2017) 262 CLR 268.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 35 years imprisonment with non-parole period of 26 years – Whether judge failed to take into account doubly warranted pre-sentence detention – Standard sentencing – Whether judge erred in approach to hypothesized mid-range of seriousness Leave to appeal refused.

Sentencing Act 1991, s 5A; Brown v The Queen (2019) 59 VR 462; Phongthaihong v The Queen (2021) 98 MVR 143.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Mr C Boyce KC with Mr L Cameron
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
KAYE JA:

Introduction

An indictment filed in the Supreme Court charged the applicant with the attempted armed robbery (charge 1), and murder at common law (charge 4), of Deniz Hasan (for convenience, ‘Hasan’). It also charged the applicant in the alternative with murder at common law (charge 2), and pursuant to s 3A(1) of the Crimes Act 1958 (charge 3), of Ali Ali.[1]
[1]In Duca v The Queen (2020) 62 VR 214, Maxwell P and T Forrest JA considered that the practice of pleading both a charge of common law murder and a charge of statutory murder contrary to s 3A advanced basic fair trial principles and was conducive to certainty and transparency in sentencing (see 228 [53]). Priest JA was of the view that the practice of charging both statutory and common law murder on an indictment in the alternative was contrary to law and should cease (see 231 [67]) (‘Duca’).
On 8 December 2021, a jury empanelled to try the applicant found him guilty of the attempted armed robbery[2] and murder[3] of Hasan (charge 4), and of the murder of Ali Ali pursuant to s 3A[4] (charge 3). The jury found the applicant not guilty of Ali Ali’s murder at common law (charge 2).[5]
[2]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 20 years’ imprisonment.
[3]The maximum penalty is life imprisonment. See Crimes Act 1958, s 3.
[4]The maximum penalty is life imprisonment.…

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 Wilio v The King

Details

AGLC: Wilio v The King [2023] VSCA 88
Case: [2023] VSCA 88
Decision Date: 27 April 2023

CaseChat Overview and Summary

In the case of Wilio v The King, the applicant appealed against his conviction and sentence for statutory murder and the total effective sentence of 35 years imprisonment with a non-parole period of 26 years. The applicant had shot his accomplice during an attempted armed robbery, resulting in the death of the accomplice. The applicant argued that the act of violence was notionally that of the deceased and that the deceased was capable of self-murder. The applicant also argued that the judge failed to take into account the doubly warranted pre-sentence detention and erred in their approach to the hypothesized mid-range of seriousness.

The legal issues that the court had to decide were whether the act of violence was notionally that of the deceased and whether the deceased was capable of self-murder. The court also had to determine whether the judge failed to take into account the doubly warranted pre-sentence detention and erred in their approach to the hypothesized mid-range of seriousness. The court considered relevant case law and statutes in making its decision.

The court found that the applicant's arguments were not persuasive and dismissed the appeal. The court held that the act of violence was notionally that of the deceased and that the deceased was not capable of self-murder. The court also found that the judge had taken into account the doubly warranted pre-sentence detention and did not err in their approach to the hypothesized mid-range of seriousness. The court concluded that the sentence was appropriate and did not need to be altered.

The court refused leave to appeal against both the conviction and sentence. This means that the applicant's appeal was dismissed, and the original conviction and sentence stand.

Orders