R v Bain - [2000] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 26 of 2000

THE QUEEN

DAVID KAMAHL BAIN

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2000
DATE OF JUDGMENT:	12 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 199

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Criminal law – Sentence – Aggravated burglary, threat to kill and possession of firearm – Total effective sentence of two-and-a-half years with minimum term of 18 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. I.D. McIvor	Victoria Legal Aid

WINNEKE, P.:

In the evening of 5 September 1999, the appellant entered a boarding house in Dandenong in search of a man called Taylor, who he believed was, or had been, molesting and harassing a girl (whom I shall call "Joanne"), who was a long-time friend of the appellant. Joanne and Taylor had in fact lived in a de facto relationship, a union which had produced a child. It would seem that Taylor had a concern over access to that child. When the appellant entered the premises he carried with him an imitation firearm. Although it had no fire power, it looked real enough and was clearly intended to so appear. It had a chamber to accommodate dummy bullets, which also matched the appearance of real ammunition. The appellant confronted Taylor in a state of anger. He grabbed him around the neck with his left arm and thrust the pistol into Taylor's ribs with his right hand. He threatened to kill Taylor if he continued to annoy Joanne. Taylor was in fact put in fear that he would be shot or killed, as the appellant had intended.

In the early hours of the following morning, 6 September, the appellant, in the company of Joanne, re-entered the house where Taylor lived. Once again, the appellant was angry. He entered the premises with the intention of assaulting Taylor, and again he had with him a gun. Either by good luck or good management, Taylor was not there. Notwithstanding, the appellant and Joanne confronted three other residents in a room of the house and demanded the production of Taylor. It seems that the appellant would not take "no" for an answer, and, when he was about to be escorted out of the house following an argument, produced the gun from beneath his coat and brandished it at the residents. One of them apparently overpowered him and ultimately he and Joanne left, carrying with them the gun. The police had been summoned and they apprehended the appellant in a car outside the house. The appellant was later conveyed to the police station, where he gave a false name initially but later gave his true name and made partial admissions.

Arising out of these events the appellant was charged on presentment with three offences. Count 1 alleged the threat to kill Taylor made on 5 September 1999. Count 2 was a…

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 Bain

Details

AGLC: R v Bain [2000] VSCA 199
Case: [2000] VSCA 199
Decision Date: 12 October 2000

CaseChat Overview and Summary

The defendant, Bain, was convicted of aggravated burglary, making a threat to kill, and possessing a firearm. The matter was heard in the Court of Appeal. The crux of the appeal revolved around the sentence imposed by the trial judge, which the defendant argued was manifestly excessive. The trial judge had determined a total effective sentence of two-and-a-half years, with a minimum non-parole period of 18 months. The defendant contended that this sentence did not adequately reflect the totality principle and was excessively lenient given the gravity of the offences.

The court examined whether the sentence imposed was manifestly excessive, considering the nature and circumstances of the offences, and the principles of sentencing in Australian law. The court noted the seriousness of the offences, which involved a home invasion, a threat to kill, and the use of a firearm. The court considered the totality principle, which mandates that the overall sentence should reflect the overall criminality of the offender's conduct. Despite the severity of the offences, the court found that the sentence was not manifestly excessive. The court emphasised that while the offences were serious, the sentence imposed did reflect the totality of the offender's conduct and was proportionate to the crimes committed.

In conclusion, the court upheld the sentence imposed by the trial judge. The court found that the total effective sentence of two-and-a-half years, with a minimum non-parole period of 18 months, was not manifestly excessive. The appeal was dismissed, and the original sentence was affirmed.

Orders