| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0054 |
| KIM FINDLAY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BOYCE and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 August 2024 |
| DATE OF JUDGMENT: | 3 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 191 |
| JUDGMENT APPEALED FROM: | DPP v Findlay (County Court of Victoria, Judge Ellis, 18 December 2023) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary – Threat to kill – Recklessly cause serious injury – Delay – Rehabilitation – Whether judge mistook maximum penalty for threat to kill offence – Offender suffering symptoms of PTSD and traumatic background – Whether sentence manifestly excessive – Application for leave to appeal refused.
Criminal Procedure Act 2009 s 280(1)(b).
Worboyes v The Queen [2021] VSCA 16; DPP v Meyers (2014) 44 VR 486; Bugmy v The Queen (2013) 249 CLR 571; Hogarth v The Queen (2012) 37 VR 658; R v Verdins (2007) 16 VR 269; Markarian v The Queen (2005) 228 CLR 357; DPP v Aydin and Kirsch [2005] VSCA 86; R v Beary (2004) 11 VR 151; R v Fuller-Cust (2002) 6 VR 496, referred to.
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| Counsel | |||
| Applicant: | Ms J Kretzenbacher | ||
| Respondent: | Ms D Piekusis KC | ||
Solicitors | |||
| Applicant: | Law and Advocacy Centre for Women | ||
| Respondent: | Office of Public Prosecutions | ||
BOYCE JA
KAYE JA:
On 14 July 2023, the applicant pleaded guilty in the County Court to charges of aggravated burglary,[1] make threat to kill[2] and causing serious injury recklessly.[3] The applicant also pleaded guilty to a related summary offence of dealing with property suspected of being the proceeds of crime.[4]
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 20 of the Crimes Act 1958.
[3]Contrary to s 17 of the Crimes Act 1958.
[4]Contrary to s 195 of the Crimes Act 1958.
Plea hearings were held on 31 October 2023 and 7 December 2023. On 18 December 2023 the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Aggravated burglary | 25 years | 20 months | 5 months |
| 2 | Make threat to kill | 10 years | 3 months | 1 months |
| 3 | Causing serious injury recklessly | 15 years | 4 years and 2 months | Base |
| Related Summary Offences | ||||
| 11 | Dealing with property suspected of being proceeds of crime | 2 years | 14 days | N/A |
| Total Effective Sentence: | 4 years and 8 months’ imprisonment | |||
| Non-Parole Period: | 2 years and 6 months’ imprisonment | |||
| Pre-sentence Detention Declared: | 539 days | |||
| Section 6AAA Statement: | Total Effective Sentence: 6 years and 2 months Non Parole-Period: 3 years and 3 months | |||
| Other Relevant Orders: 1. Forfeiture and Disposal orders | ||||
The applicant applies for leave to appeal against sentence. The applicant’s notice pleads four proposed grounds of appeal:
Ground 1: The learned sentencing judge erred in not taking into account the mitigating factor of delay in the exercise of the sentencing discretion.
Ground 2: The learned sentence judge erred in finding that the…
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- AGLC
- Findlay v The King [2024] VSCA 191
- Case
- [2024] VSCA 191
- Decision Date
CaseChat Overview and Summary
The court examined the sentencing principles laid down in the Criminal Procedure Act 2009 and considered relevant case law, including Worboyes v The Queen and Bugmy v The Queen. The court found that the trial judge had not erred in understanding the maximum penalty for the threat to kill offence. The court noted that while the applicant's traumatic background and PTSD were significant mitigating factors, they did not render the sentence manifestly excessive. The court emphasised the seriousness of the offences committed and the need to deter similar conduct.
The Supreme Court concluded that the sentence imposed was appropriate and did not manifest any error in principle. The court dismissed the application for leave to appeal, holding that the sentence was not manifestly excessive and that the trial judge had correctly applied the relevant sentencing principles. No further appeal was permitted.
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