R v JH - [2012] VSC 13

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0133 of 2011

THE QUEEN

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	28-30 November, 1, 2, 5-7, 9, 12-14 December 2011
DATE OF SENTENCE:	24 January 2012
CASE MAY BE CITED AS:	R v JH
MEDIUM NEUTRAL CITATION:	[2012] VSC 13

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CRIMINAL LAW – Sentence – Two counts of aggravated burglary – Two counts of theft – Young offender – CNK v The Queen – 12 month Youth Supervision Order and 182 days’ detention at a Youth Justice Centre.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Maitland Lincoln Mr Paul D’Arcy	Office of Public Prosecutions
For the Accused	Mr Philip Skehan	Clerk Meldrum & Hyland

HIS HONOUR:

Two young men broke into the Hickford family home at Kialla early on Friday 17 December 2010. Bill Hickford, then 62, woke up and disturbed them. One young man fled. The other stayed and set about Bill Hickford with a knife. He stabbed Mr Hickford to the face, to the forehead, to the neck, to the upper chest and to the abdomen. In all, Mr Hickford was stabbed 20 times. By rights he should have died. Without early and expert medical intervention he would have died. I am satisfied that Mr Hickford’s attacker either intended to kill him or, at the very least, intended to cause him really serious injury.

Bill Hickford will forever bear the physical and emotional scars of this attack. He and his partner Joanne Dawson will never feel safe in their own home again. I have heard from both Mr Hickford and Ms Dawson by way of victim impact statements to this Court. The damage that has been occasioned to both of them is profound and enduring.

The young person responsible for this appalling crime will escape punishment for it. The jury by its verdict has concluded that it is not satisfied that you, JH, were responsible for attacking Mr Hickford. Your co-offender, AS, denies that he was responsible and has been indemnified from prosecution in return for giving evidence that you in fact were Mr Hickford’s assailant. The jury was not satisfied that his account was truthful.

I am required to sentence you only for the offences to which you have pleaded guilty – namely two counts of aggravated burglary and two counts of theft. I propose to sentence you on the following factual basis:

· You and AS devised a plan to break into and steal from houses at 11 and 14 Pedder Court, Kialla;

· You and AS broke into 11 Pedder Court. At the time you did so you either knew there was a person present at that address, or you were reckless as to whether a person was in fact present;

· At that address you participated in the theft of an IBM laptop computer, a Fuji digital camera and case, a wallet containing $30 cash, a pair of Fox motorcycle gloves, 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 JH

Details

AGLC: R v JH [2012] VSC 13
Case: [2012] VSC 13
Decision Date: 24 January 2012

CaseChat Overview and Summary

The case of R v JH involved a young offender who was charged with two counts of aggravated burglary and two counts of theft. The dispute centred on the appropriate sentence to be imposed on the defendant, who was a minor at the time of the offences. The matter was heard in the Children’s Court of New South Wales. The legal issues before the court were whether the defendant's age and other mitigating factors warranted a sentence that was more rehabilitative than punitive, and if the precedent set by CNK v The Queen was applicable in determining the appropriate sentence.

The court was required to weigh the gravity of the offences against the defendant's age, the likelihood of rehabilitation, and the principles set out in CNK v The Queen. The court considered that while the offences were serious, the defendant's age and potential for rehabilitation were significant mitigating factors. The court also noted the importance of proportionality in sentencing young offenders, as per the principles established in CNK v The Queen. Ultimately, the court decided that a sentence that focused on rehabilitation would be more appropriate than one that was purely punitive.

Following its reasoning, the court imposed a 12-month Youth Supervision Order coupled with 182 days’ detention at a Youth Justice Centre. The sentence was designed to address the defendant's offending behaviour while providing opportunities for rehabilitation and reintegration into society. The court emphasised that the sentence was intended to protect the community, rehabilitate the defendant, and deter future offending. The orders reflect a balanced approach that considers both the seriousness of the crimes and the defendant's circumstances.

Orders