| 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.…
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- AGLC
- Wilio v The King [2023] VSCA 88
- Case
- [2023] VSCA 88
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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