R v Huitt - [1998] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 176 of 1998

THE QUEEN

LUKE DAVID HUITT

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 1998
DATE OF JUDGMENT:	24 November 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 118

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Criminal law - Sentence - Intentionally causing serious injury -Victim set on fire by co- offender - Applicant’s lesser participation - Remorse - Sentence not manifestly excessive

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss R. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. R.J. Marron	Victoria Legal Aid

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WINNEKE, P.:

I will invite Charles, J.A. to give the first judgment in this application.

CHARLES, J.A.:

On 23 June 1998 the applicant and Benjamin Levi Rolfe both pleaded guilty in the County Court at Melbourne to a presentment containing one count of intentionally causing serious injury contrary to s.16 of the Crimes Act 1958. The maximum penalty was 20 years' imprisonment. The applicant and Rolfe had been committed for trial in the County Court on 14 April 1998 in the Magistrates' Court at Melbourne, at which time both entered pleas of guilty. The applicant admitted four previous convictions for theft-related offences from one court appearance on 23 May 1997. Rolfe admitted 13 previous convictions from eight court appearances between 8 April 1987 and 4 March 1997.
A plea was heard on the same day, during which a victim impact statement was tendered, and counsel for the applicant tendered two reports from a clinical consulting psychologist, Mr Bernard Healey, and called the applicant's parents, Thelma Veronica Huitt and John David Huitt. The learned judge adjourned the further hearing of the applicant's plea pending receipt of a pre-sentence psychiatric report, which was obtained from Dr Ruth Vine.
On 2 July 1998, the learned judge sentenced the applicant to be imprisoned for four years and six months and fixed a non-parole period of two years and six months. Rolfe was sentenced to be imprisoned for six years and the learned judge fixed a non-parole period in his case of three years and six months.
The applicant now seeks leave to appeal against sentence on the grounds
that -

(1)

The learned judge erred as to the facts, or alternatively incorrectly interpreted the material contained in the depositions relating to the role and level of involvement of the applicant.
(2) The learned judge failed properly to assess the weight to be given to the
answers given by the co-offender in his record of interview.
(3) The sentence was manifestly excessive.
(4) The learned judge erred in applying the principle of parity.

The circumstances giving rise to these offences were as follows. On Saturday 25 October 1997 the applicant and Rolfe, together with Travis Ray Bradshaw and several others, were living as squatters in rooms on the fifth floor of the vacant Peter McCallum Cancer Institute building at the corner of Little Lonsdale and William Streets, Melbourne. They regularly went 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 Huitt

Details

AGLC: R v Huitt [1998] VSCA 118
Case: [1998] VSCA 118
Decision Date: 24 November 1998

CaseChat Overview and Summary

The case before the court involved a criminal appeal by Huitt against a sentence imposed for his involvement in an incident where a victim was set on fire by a co-offender. The sentence was appealed on the grounds that it was manifestly excessive considering Huitt's lesser participation and his expression of remorse. The court of appeal was tasked with determining whether the sentence was appropriate in light of these factors.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the applicant's level of involvement and his remorse. The court needed to assess the balance between the severity of the crime and Huitt's personal circumstances, including his lesser role and expressions of remorse. This required a careful analysis of the sentencing principles applicable to cases of intentional serious injury and the weight to be given to the mitigating factors presented.

The court found that the sentence was not manifestly excessive. It held that the trial judge had appropriately considered the relevant principles and had given due weight to Huitt's lesser participation and his expression of remorse. The court concluded that the sentence reflected a proper application of the sentencing principles and was commensurate with the gravity of the offence. The appeal was dismissed, affirming the sentence as appropriate given the circumstances.

The court made no further orders, affirming the original sentence as appropriate and dismissing the appeal.

Orders