2.Set aside orders 2 to 7 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 8 December 2015 and in their place order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of Victoria
Representation
G J C Silbert QC with B L Sonnet for the appellant (instructed by Solicitor for Public Prosecutions (Vic))
D A Dann QC with G F Connelly for the respondent (instructed by Doogue O'Brien George)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Kilic
Criminal law – Sentencing – Intentionally causing serious injury – Where respondent and victim in domestic relationship – Where victim 12 weeks pregnant with respondent's child – Where respondent caused serious injury to victim by dousing her with petrol and setting her alight – Where instant offence at upper end of range of seriousness for offence of intentionally causing serious injury – Whether Court of Appeal erred in use of expression "worst category" of offence – Whether Court of Appeal erred in consideration of current sentencing practices – Whether sentence imposed by sentencing judge manifestly excessive.
Words and phrases – "comparable case", "current sentencing practices", "maximum prescribed penalty", "spectrum of seriousness", "upper end of the range of seriousness", "worst category", "yardstick".
BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. Upon pleading guilty before a judge of the County Court of Victoria to one charge of intentionally causing serious injury[1] by dousing the victim with petrol and setting her alight, the respondent was sentenced for that offence ("the principal offence") to 14 years' imprisonment. The respondent also pleaded guilty to two uplifted[2] charges, one of using a prohibited weapon[3] and one of dealing with suspected proceeds of crime[4] ("the summary offences"), and was sentenced to further terms of 12 months' imprisonment for each of those offences. The sentencing judge (Judge Montgomery) cumulated six months of each of the sentences imposed for the summary offences upon each other and upon the sentence imposed for the principal offence, making a total effective sentence of 15 years' imprisonment. His Honour set a non-parole period of 11 years[5].
[2]Section 145 of the Criminal Procedure Act 2009 (Vic) governs the circumstances in which, on the committal for trial of an accused charged with an indictable offence, the Magistrates' Court of Victoria must transfer related charges for summary offences against the accused to the court to which the accused has been committed for trial.
[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.
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Details
AGLC
R v Kilic [2016] HCA 48
Case
[2016] HCA 48
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning the sentencing of the respondent, who had intentionally caused serious injury to his victim. The dispute arose from the respondent dousing the victim with petrol and setting her alight. The victim was 12 weeks pregnant with the respondent's child at the time of the offence, and their relationship was described as dysfunctional and drug-affected. The core of the appeal involved whether the Court of Appeal had erred in its sentencing considerations.
The legal issues before the High Court included whether the Court of Appeal had erred in its characterisation of the offence as falling within the "worst category" of intentionally causing serious injury, and whether it had improperly considered current sentencing practices. Additionally, the High Court considered a secondary complaint that the Court of Appeal had impermissibly substituted its own views for the findings of the sentencing judge regarding the unpremeditated nature of the offence, the respondent's criminal antecedents, and his prospects of rehabilitation.
The High Court found that the Court of Appeal had indeed erred in describing the respondent's offence as falling within the "worst category" of intentionally causing serious injury. However, the Court clarified that this expression was used by the Court of Appeal to signify an instance of the offence towards the upper end of the spectrum of seriousness, and therefore, this error was without relevant consequence to the ultimate outcome. The High Court rejected the secondary complaint regarding the Court of Appeal substituting its own views for the sentencing judge's findings.
Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Appeal and ordering in their place that the appeal to the Court of Appeal be dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2 to 7 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 8 December 2015 and in their place order that the appeal to that Court be dismissed.
Background
Background to the litigation
There is also a secondary complaint that the Court of Appeal impermissibly substituted their own views for the findings of Judge Montgomery as to whether the principal offence is appropriately to be characterised as unpremeditated; as to the extent of the respondent's criminal antecedents; and as to the respondent's prospects of rehabilitation. As will be explained, that complaint should be rejected. The facts At the time of commission of the principal offence on 27 July 2014, the respondent was 22 years of age and in a relationship with the victim which had begun in February 2014. The victim was 23 years of age and she was 12 weeks pregnant with the respondent's child. Their relationship was described by the victim as "dysfunctional and controlled by drug use". Both the respondent and the victim used the drug known as "ice" (crystal methamphetamine). Towards the end of March 2014, the victim began living with the respondent in a house where he resided with his father. On 26 July 2014, as a result of what the victim considered to be the constant paranoid, controlling behaviour of the respondent, she left the house and stayed overnight with a friend. During the following day, a mutual friend, Ms Ahu, attempted to counsel the couple. Early in the evening of that day, Ahu arranged to meet the victim to discuss the relationship issues and, on the way, Ahu stopped at the respondent's home to collect some belongings and to speak to the respondent. Ahu observed him to be in a highly agitated state and angry that the victim would not speak to him or meet him. He alleged that the victim had been cheating on him and he called the victim a "slut". Later, he calmed down and said that everything was "going to be ok". Ahu telephoned the victim from the respondent's home and the victim arranged to meet Ahu there. Hence, at about 10.40 pm, the victim's uncle and cousin commenced to drive the victim towards the respondent's home. On the way, the victim observed two of her and the respondent's friends, Mr Bond and Mr Scott, who were on the side of the road refuelling their car with petrol from a fuel can. The victim therefore got out of the car in which she had been travelling and, when Bond and Scott had finished refuelling the car, drove on with them to the respondent's home. At that stage, there was still approximately a litre of petrol remaining in the fuel can, which was on the back seat. When they arrived at the respondent's home, Bond parked in the street directly opposite the front entrance. As Bond was about to get out of the car, he observed the respondent running across the street towards him holding a samurai sword above his shoulders and pointing it at Bond. As the respondent reached the car, he thrust the sword through the open driver's window where Bond was sitting but, at the last moment, the sword veered towards the steering wheel. The respondent then walked away from the car, verbally abusing Bond, Scott and the victim as he went. He yelled at the victim: "you're just a fucking slut". Bond followed the respondent into the front yard of the house and attempted to calm him down. The respondent filled a plastic bottle with water, swung the sword at the bottle and said to Bond: "this would take some cunt's head off".
Evidence
Evidence Before The Court
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Decision
Reasons for decision
BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
Finally, it should be mentioned that the respondent filed a notice of contention that the decision of the Court of Appeal should be upheld but on the basis that the Court of Appeal erred in characterising the respondent's offence of intentionally causing serious injury as falling in the "worst category" of cases of intentionally causing serious injury. As has been explained, the Court of Appeal were in error to describe the respondent's offence as falling within the worst category. But, once it is appreciated that the Court of Appeal used that expression in the sense of an instance of the offence of intentionally causing serious injury towards the upper end of the range of seriousness, the point is without relevant consequence.Conclusion and orders In the result, the appeal should be allowed. Orders 2 to 7 of the orders of the Court of Appeal should be set aside. In lieu thereof, it should be ordered that the appeal to the Court of Appeal be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
BELL, GAGELER, KEANE, NETTLE AND GORDON JJ