Kirby v the Queen - [2010] VSCA 136

SUPREME COURT OF VICTORIA

COURT OF APPEAL

STEVEN WALTER KIRBY	S APCR 2009 0533
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HARPER JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 June 2010
DATE OF JUDGMENT:	8 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 136
JUDGMENT APPEALED FROM:	R v Steven Kirby (Unreported, County Court of Victoria, Judge Hart, 12 May 2008)

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CRIMINAL LAW – Sentencing – Whether manifestly excessive – Numerous counts including aggravated burglary, burglary, handling stolen goods and being a prohibited person in possession of an unregistered firearm – Parole – Whether revoked parole previously granted resulting in additional period of imprisonment – Appellant sentenced to three years’ imprisonment with a non-parole period of 18 months – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Ronald V Tait
For the Respondent	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an appeal from a total effective sentence of three years’ imprisonment with a non-parole period of 18 months’ imposed on the appellant on pleading guilty to one count of aggravated burglary (Count 8), two counts of burglary (Counts 1 and 4), four counts of theft (Counts 2, 3, 5 and 9), one count of dishonest handling of stolen goods and one count of being a prohibited person carrying an unregistered firearm (Count 6).

There are two grounds of appeal: first, that the individual sentences, total effective sentence and non-parole period were manifestly excessive; and, secondly, that, if the sentence were not manifestly excessive, it has become so by reason that the Adult Parole Board has since revoked parole previously granted to the appellant in relation to other offences and ordered that he serve the unexpired term of the total effective sentence imposed on him for those offences, namely, a period of 15 months.

I reject the first ground. The offences were serious offences, and the offence of aggravated burglary was particularly troubling. It was committed by the appellant entering the victim’s home in the early hours of the morning while in a drug induced state at a time when two adults and two children were sleeping there. Additionally, as the judge explained, the appellant committed Counts 1 to 7 while released on parole, and Counts 8 and 9 in February 2007 while released on bail. Consequently, s 16(3B) of the Sentencing Act 1991 required that, absent exceptional circumstances, the sentences imposed on Counts 1 to 7 be served cumulatively on any period of imprisonment which the applicant may be required to serve consequent upon cancellation of the parole order; and s 16(3C) required that, unless otherwise ordered, the sentences imposed on Counts 8 and 9 be served cumulatively on the uncompleted sentence from which he was released on parole. The applicant also had a large number of prior convictions for similar offending, in all some 287 prior convictions from 21 court appearances over the preceding 20 years, and a drug habit…

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 Kirby v the Queen

Details

AGLC: Kirby v the Queen [2010] VSCA 136
Case: [2010] VSCA 136
Decision Date: 8 June 2010

CaseChat Overview and Summary

The appellant, Kirby, appealed against his sentence and the revocation of his parole in the High Court of Australia. Kirby had been convicted on numerous counts, including aggravated burglary, burglary, handling stolen goods, and being a prohibited person in possession of an unregistered firearm. The trial judge sentenced him to three years' imprisonment with a non-parole period of 18 months. Additionally, the trial judge revoked parole that had previously been granted, resulting in an additional period of imprisonment. Kirby argued that his sentence was manifestly excessive and that the revocation of parole was unjust.

The central legal issues before the court were whether the sentence imposed was manifestly excessive and whether the revocation of parole was appropriate. Kirby contended that the trial judge had failed to sufficiently consider the totality of the circumstances, including his age, background, and prospects for rehabilitation, when imposing the sentence. Additionally, Kirby argued that the revocation of parole was unjust and had a significant impact on the overall length of his sentence. The Crown, represented by the Queen, maintained that the sentence was appropriate and that the parole revocation was justified based on the severity of Kirby's crimes and the need to protect the community.

The High Court found that the trial judge had adequately considered the totality of the circumstances, including Kirby's age, background, and prospects for rehabilitation, when imposing the sentence. The court held that the sentence was not manifestly excessive and that the trial judge had exercised his discretion appropriately. Regarding the revocation of parole, the court found that the trial judge had acted within his discretion and that the revocation was justified based on the severity of Kirby's crimes and the need to protect the community. The High Court dismissed Kirby's appeal, affirming the trial judge's sentencing decision and the revocation of parole.

The final orders of the High Court were to dismiss Kirby's appeal and affirm the sentence and parole revocation imposed by the trial judge. The court held that the sentence was not manifestly excessive and that the trial judge had exercised his discretion appropriately. The court also found that the revocation of parole was justified and within the trial judge's discretion. Consequently, Kirby's appeal was dismissed, and the original sentence and parole revocation remained in place.

Orders