R v Herbert - [2007] VSC 264

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1476 of 2007

THE QUEEN

MARK ALAN HERBERT

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2007
DATE OF SENTENCE:	18 July 2007
CASE MAY BE CITED AS:	R v Herbert
MEDIUM NEUTRAL CITATION:	[2007] VSC 264

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CRIMINAL LAW - Sentence – Armed robbery (1 count) - Plea of guilty – Undertaking to give evidence in re-trial of a co-accused on the original presentment - Prior convictions – Discount for guilty plea and co-operation - General and specific deterrence – Prospects of rehabilitation – 3 years 9 months imprisonment with a non-parole period of 2 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Wallwork	Solicitor for Public Prosecutions
For the Accused	Mr S. Cash	Balmer & Associates

HIS HONOUR:

Mark Alan Herbert, on Monday, 16 July 2007 you were arraigned on one count of armed robbery to which you pleaded guilty. The maximum penalty for the offence of armed robbery is 25 years imprisonment.

On the original presentment there were seven accused. Three were charged with assisting offences. Two brothers, John Kohunui and Tame Kohunui, were each charged with murder and two armed robberies. You were charged with one of those armed robberies, and another man named Wally White was charged with the other armed robbery and with the murder. After discussions between counsel for John Kohunui, counsel for Tame Kohunui, and counsel for the prosecution, the original presentment was amended so that the charge of murder against the two Kohunui brothers was amended to one of manslaughter. They were then re-arraigned and pleaded guilty to all charges. Consequent upon those guilty pleas by the Kohunui brothers, new separate presentments were filed in relation to you and in relation to Wally White. The trial of Wally White on the charges of murder and armed robbery commenced on 14 May 2007. On 8 June 2007 I discharged the jury as they were unable to agree. Prior to your guilty plea on 16 July 2007, it was envisaged that your trial would proceed after the re-trial of Wally White in October 2007.

All of the various charges to which I have referred relate to two armed robberies at a gaming venue named the Freccia Azzurra Club in Keysborough. The first occurred on 2 November 2004 and the second on 28 November 2004. In the course of the second armed robbery a security guard, Mr Jason Gully, was killed. The two Kohunui brothers have pleaded guilty to committing both armed robberies, and have pleaded guilty to manslaughter in relation to the security guard killed in the second armed robbery. You have now pleaded guilty to committing the first armed robbery. There was a third person at the second armed robbery. The Crown alleges that person was Wally White. The Crown alleges he was the one who shot and killed the security guard.

In the armed robbery to which you have…

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 Herbert

Details

AGLC: R v Herbert [2007] VSC 264
Case: [2007] VSC 264
Decision Date: 18 July 2007

CaseChat Overview and Summary

In the matter of the Crown versus Herbert, the appellant was convicted of armed robbery and sentenced in the Supreme Court of Queensland. The appellant entered a guilty plea and subsequently provided evidence in the retrial of a co-accused. The legal issues centred on the appropriate sentence to be imposed, taking into account the discount for the guilty plea and cooperation, the need for general and specific deterrence, and the prospects of rehabilitation. The court also considered the appellant's prior criminal history.

The court acknowledged the discount for the guilty plea and cooperation but emphasised the gravity of the offence. The appellant's prior convictions indicated a pattern of criminal behaviour, which weighed against a lenient sentence. The court also highlighted the need for general deterrence to discourage others from engaging in similar conduct. While the prospects of rehabilitation were considered, the court determined that the sentence needed to reflect the seriousness of the crime and the need for specific deterrence. Ultimately, the court imposed a sentence of three years and nine months, with a non-parole period of two years and six months.

The court carefully weighed the mitigating factors of the guilty plea and cooperation against the aggravating factors of the appellant's criminal history and the need for deterrence. The sentence imposed was deemed appropriate to balance these considerations and achieve the objectives of punishment, deterrence, and rehabilitation. The sentence was within the range of penalties typically imposed for armed robbery, reflecting the court's consideration of all relevant factors. The court's decision was consistent with the principles of sentencing for serious offences and the need to uphold public confidence in the criminal justice system.

Orders