R v KCF - [2006] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 102 of 2006

THE QUEEN
	v.
KCF

---

JUDGES:	NETTLE and NEAVE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2006
DATE OF JUDGMENT:	29 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 270

---

CRIMINAL LAW – Sentencing – Arson and theft – Appellant lighting fire in bakery – Manifest excessiveness – Appellant to give evidence against co-accused – Whether judge erred in determining the seriousness of the offence as to the co-conspirators – Whether resulting discount reflected sufficient acknowledgement – Johns v. R. (1979) 141 C.L.R. 409, R. v. Franklin (2001) 3 V.R. 9 and Director of Public Prosecutions v. SJK [2002] VSCA 131 – Sentencing Act 1991 s. 16A(2)(h)

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L.C. Carter	Hale & Wakeling

NETTLE, J.A.:

This is an appeal with leave against a total effective sentence of five years' imprisonment with a non-parole period of two-and-a-half years imposed on the appellant by a judge of the County Court in respect of one count of arson (count 1) and one count of theft (count 2), to both of which the appellant pleaded guilty.

The grounds of appeal are that the judge erred in determining that the appellant's role in the offending was very much more serious than that of his co-conspirators; that the judge erred by holding that the appellant's undertaking to give evidence against his co-conspirators earned him no more than a small reduction in sentence; and that the individual sentences and the total effective sentence were manifestly excessive.

The Facts

The appellant was born on 26 September 1981 and at the time of the offences on 7 July 2004 he was 22 years of age and living with his partner, AB, at the home of CD. CD was the mother of the appellant's friend, EF, who also lived at the house. CD's daughter, GH, and CD's niece, JK, lived at the house as well. EF worked as an apprentice baker and for the purposes of his employment he had been issued with a key to the bakery.

On a number of occasions before the offences were committed, EF complained of having to work in the evenings. He suggested to his sister and cousin that they take his key and “mess up” the bakery so that he would not have to work for a few days. He told them that their reward would be that they could take a sum of between $5,000 and $7,000 which was said to be kept on the premises. They refused to do so. CD then became involved in attempts to persuade the appellant to mess up the bakery and to steal the money, and eventually she persuaded him to do so. At 2 a.m. on Wednesday 7 July 2004, he went to the bakery, equipped with a backpack containing a bottle of petrol and a rag and 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 KCF

Details

AGLC: R v K C F [2006] VSCA 270
Case: [2006] VSCA 270
Decision Date: 29 November 2006

CaseChat Overview and Summary

In the matter of R v KCF, the appellant, KCF, was found guilty of arson and theft related to an incident in which he set fire to a bakery. The appeal focused on the sentence handed down by the trial judge, which the appellant argued was manifestly excessive. A central issue in the appeal was whether the trial judge erred in assessing the seriousness of the offence as it related to the co-conspirators. Additionally, the court needed to determine if the sentence discount, applied because the appellant agreed to testify against his co-accused, adequately reflected the acknowledgment of the appellant's cooperation.

The court examined the principles laid out in Johns v. R., R. v. Franklin, and Director of Public Prosecutions v. SJK, which provide guidance on the application of discounts for cooperation under the Sentencing Act 1991 s. 16A(2)(h). The court considered the appellant's role in the offence and the extent to which his cooperation with authorities warranted a discount. The judge's assessment of the seriousness of the offence and the weight given to the appellant's agreement to testify against his co-accused were closely scrutinised to determine if the sentence imposed was just and appropriate. The court balanced the appellant's culpability with the mitigating factor of his cooperation in arriving at the final sentence.

Ultimately, the court found that the trial judge had not erred in determining the seriousness of the offence. The judge had appropriately considered the appellant's involvement and the discount for cooperation. The court upheld the sentence, ruling that it was not manifestly excessive. The appeal was dismissed, and the original sentence was affirmed.

Orders