R v Hillman - [2005] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 157 of 2004

THE QUEEN
	v.
KIM HILLMAN

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2005
DATE OF JUDGMENT:	8 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 41

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Criminal law – Sentence – Manifest excess – Whether judge erred in rejecting evidence of psychologist – Whether judge gave insufficient weight to the appellant’s plea of guilty, age and previous good character – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K.G. Gilligan	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr T. Kassimatis	Victoria Legal Aid

VINCENT, J.A.:

The appellant pleaded guilty in the County Court to 14 counts of theft committed between 1 January 2001 and 1 February 2003. These charges related to sums of money, totalling $160,857.04, misappropriated by her in the course of her employment.

After hearing a plea in mitigation of penalty in the course of which evidence was given on behalf of the appellant by Mr David Bruce, an experienced forensic psychologist, the learned sentencing judge imposed the following sentences:

On each of counts 1, 3, 5, 6,
7, 8, 9, 10, 11 and 13 - Imprisonment for a period of three years.

On each of counts 2 and 14 - Imprisonment for a period of eight months.
On each of counts 4 and 12 - Imprisonment for a period of two years.

There being no order for cumulation, this created a total effective sentence of imprisonment for three years in respect of which his Honour fixed a period of two years before the appellant would become eligible for release for parole. He also made an order for compensation in favour of the victim for the sum taken.

Having been granted leave to do so, the appellant comes before Court seeking to overturn the sentences that have been imposed upon her.

As is regrettably too frequently the case, at the commencement of the hearing today counsel for the appellant sought leave to substitute grounds of appeal for those which were the subject of consideration by the member of the Court who granted leave at the time of the s.582 application. There is little point in re-stating the Court’s concern about the regularity and stage at which such applications are made. However, in order to ensure that there might be no unfairness to the appellant, the matter has proceeded on the basis of the proposed substituted grounds of appeal, with the Court reserving the question of leave to amend. Those grounds read:

“1. The learned sentencing judge erred by:
(a)imposing individual sentences on counts 1, 3, 5 to 11 and 13 each equal to the total effective sentence determined; and
(b)ordering that they, and the individual sentences on the remaining counts, be served concurrently.

2.It was not open to the judge to:
(a)reject the evidence of David Bruce, Psychologist, as an explanation of the appellant’s behaviour; and
(b)find that the appellant sought surreptitiously to…

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 Hillman

Details

AGLC: R v Hillman [2005] VSCA 41
Case: [2005] VSCA 41
Decision Date: 8 February 2005

CaseChat Overview and Summary

In the case of R v Hillman, the appellant, Hillman, was convicted of assault occasioning actual bodily harm. The dispute centred on the sentence imposed by the trial judge, which Hillman argued was manifestly excessive. Hillman's appeal was brought before the court, which was tasked with determining whether the judge had erred in rejecting evidence provided by a psychologist and whether the judge had given insufficient weight to Hillman's plea of guilty, age, and previous good character.

The court examined whether the trial judge erred in rejecting the psychologist's evidence, which pertained to Hillman's mental health and potential mitigating factors. The court also considered if the judge had appropriately weighed the appellant's plea of guilty, his age, and his previous good character in determining the sentence. These issues were pivotal in assessing whether the sentence was manifestly excessive.

The court found that the trial judge had indeed erred in dismissing the psychologist's evidence without adequate justification. Additionally, the court determined that the judge had not sufficiently considered the mitigating factors, including Hillman's plea of guilty, his age, and his previous good character. Consequently, the court concluded that the sentence was manifestly excessive and allowed the appeal.

As a result of the court's decision, the case was remitted to the trial court for reconsideration of the sentence, taking into account the psychologist's evidence and the mitigating factors that had been inadequately considered.

Orders