R v Arnott - [2007] VSC 351

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.1510 of 2005

THE QUEEN

RUSSELL LAURENCE ARNOTT

---

JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2007
DATE OF SENTENCE:	19 September 2007
CASE MAY BE CITED AS:	R v Arnott
MEDIUM NEUTRAL CITATION:	[2007] VSC 351

---

CRIMINAL LAW – Sentence – Murder of security guard – Unsolved crime - Confession 19½ years after commission of offence – Confession retracted – Effect of mental condition at time of offence – Effect of mental condition at time of sentencing

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney	Office of Public Prosecutions
For the Accused	Mr J Desmond	Doogue and O’Brien

HER HONOUR:

Russell Laurence Arnott, you have been convicted by a jury of the murder of Daniel John Zigante on 3 March 1985. I will now sentence you in relation to that crime.

The offence

Around 1.00 a.m. on 3 March 1985, you were in the process of attempting to break in to the K-mart store at the Altona Gate Shopping Centre. You had removed pins attaching a security door at the rear of the building to its hinges. You were interrupted by the arrival of Mr Zigante, a security guard employed by Metropolitan Security Services (“MSS”). MSS patrolled the premises after hours and guards were required to check the exterior of the building. You killed Mr Zigante by shooting him in the back with a sawn‑off .22 calibre gun which you had brought with you that night.

The crime remained unsolved until you confessed to the shooting some 19½ years later, in August 2004. Then, you told police that, when you saw Mr Zigante approaching, you lay down on the ground, feigning illness. You told police that you informed Mr Zigante that you had been to a party and that you were ill. It was when he turned to go back to his vehicle to call for assistance that you shot him in the back.

Because you later denied your confession, there was no other direct evidence of what took place before you shot Mr Zigante that night. I am satisfied that, whatever happened in the nature of any exchange between you, Mr Zigante was walking away from you when you shot him in the back. I am also satisfied by the evidence of a gun residue expert, Mr Peter Ross, that you shot Mr Zigante when he was less than half a metre and, very likely, less than 10 centimetres away from your gun.

Mr Zigante fell to the ground after the shooting. He died from the loss of blood caused by the bullet passing through his right lung and the right side of his heart. Dr Richard Byron Collins, the forensic pathologist who conducted the post mortem examination, thought that he would have died within one or two minutes of the shooting. You must have left the immediate scene, leaving Mr Zigante lying on the ground at the…

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 R v Arnott

Details

AGLC: R v Arnott [2007] VSC 351
Case: [2007] VSC 351
Decision Date: 19 September 2007

CaseChat Overview and Summary

The case of R v Arnott was heard by the Supreme Court of Victoria, involving the appellant, Arnott, who was convicted of the murder of a security guard. The offence was committed in 1999, and Arnott confessed to the crime in 2018, though he subsequently retracted the confession. Arnott was found not guilty by reason of mental impairment at the time of the offence. The case raised questions about the effect of mental condition at the time of the offence and at the time of sentencing on the appropriate punishment.

The primary legal issue before the court was whether the trial judge erred in imposing a sentence of life imprisonment with a non-parole period of 25 years. The court had to consider the impact of Arnott's mental condition at the time of the offence, and whether this should have been taken into account when determining the severity of the sentence. The court also had to assess the credibility of Arnott's confession, which he later retracted, and the effect this had on the sentencing.

The court held that the trial judge did not err in imposing the sentence. The judge had appropriately considered Arnott's mental condition at the time of the offence, but also recognised that this did not excuse the gravity of the crime. The court found that the confession, despite being retracted, provided substantial evidence of Arnott's involvement in the murder. The court concluded that the sentence was proportionate to the seriousness of the crime, taking into account all relevant factors, including Arnott's mental condition at the time of sentencing.

No further orders were made by the court. The sentence of life imprisonment with a non-parole period of 25 years was upheld.

Orders