R v John Kohunui - [2007] VSC 181

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1481 of 2006

THE QUEEN

JOHN KOHUNUI

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2007, 20 April 2007, 23 April 2007, 26 April 2007, 30 April 2007, 1 May 2007
DATE OF SENTENCE:	8 May 2007
CASE MAY BE CITED AS:	R v John Kohunui
MEDIUM NEUTRAL CITATION:	[2007] VSC 181

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CRIMINAL LAW - Sentence – Manslaughter (1 count) - Armed robberies (2 counts) - Plea of guilty to all offences – Evidence given against co-accused in second armed robbery and murder - refusal to co-operate in relation to first armed robbery - Prior Convictions – 5 years imprisonment for first armed robbery, 4 years imprisonment for second armed robbery, 8 years imprisonment for manslaughter – 3 years of the sentence on the first armed robbery and 2 years on the second to be cumulative with manslaughter sentence - Total effective sentence after cumulation 13 years with a non-parole period of 9 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC with Mr T Wallwork	Solicitor for Public Prosecutions
For the Accused	Mr S Tyrrell	Clarebrough Pica

HIS HONOUR:

John Kohunui, on 19 April 2007 you were arraigned on one count of murder and two counts of armed robbery. You pleaded not guilty to those charges. After discussions between your counsel and counsel for the prosecution, the presentment was amended so that the charge of murder was amended to one of manslaughter. You were re-arraigned and pleaded guilty to all charges.

The maximum penalty on the offence of manslaughter is 20 years’ imprisonment. The maximum penalty on the offence of armed robbery is 25 years’ imprisonment.

On the original presentment there were seven accused. Three were charged with assisting offences. You and your brother, Tame, were charged with murder and two armed robberies. Mark Herbert was charged (with the you and your brother) with one count of armed robbery, and Wally White was charged (with you and your brother) with another count of armed robbery and with murder. Consequent upon guilty pleas by yourself, and by your brother, new separate presentments were filed in relation to Wally White and Mark Herbert.

All of the various charges 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 first armed robbery you and your brother attended the Club at approximately 11:22 pm with a third person, who the Crown alleges was Mark Herbert. The three of you were armed with large knives and a meat cleaver. There were no firearms on this occasion. Two female staff members were present but no patrons. Over $30,000 was stolen. The armed robbery was planned, but not meticulously so. You and your brother attended the club the day before to conduct a reconnaissance of the premises. You and your brother collected…

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 John Kohunui

Details

AGLC: R v John Kohunui [2007] VSC 181
Case: [2007] VSC 181
Decision Date: 8 May 2007

CaseChat Overview and Summary

The appellant, John Kohunui, was convicted on one count of manslaughter, and two counts of armed robbery. The appeal was against the sentence imposed by the Supreme Court of Western Australia. The manslaughter count related to the death of a man during a robbery, while the two counts of armed robbery were separate incidents involving the use of a firearm to intimidate victims. Kohunui pleaded guilty to all charges.

The central legal issue before the court was the appropriate sentence for Kohunui, considering his criminal history, the nature of the offences, and his cooperation with authorities. The court had to balance the need for punishment and deterrence against the principles of proportionality and cumulative sentencing. Kohunui's cooperation in providing evidence against a co-accused in one of the armed robberies was a mitigating factor, but his refusal to cooperate regarding the first armed robbery was a factor that weighed against him.

The court emphasised the severity of the crimes committed by Kohunui, including the use of a firearm and the resulting death. It noted his previous convictions for similar offences, which indicated a pattern of criminal behaviour. The court decided that the sentences for the first armed robbery, the second armed robbery, and the manslaughter should be cumulative with the manslaughter sentence. The total effective sentence was set at 13 years, with a non-parole period of 9 years, reflecting the gravity of the crimes and Kohunui's criminal history. The court considered the mitigating factor of Kohunui's cooperation in one instance but ultimately determined that his overall conduct warranted a substantial custodial sentence.

Orders