R v Kilmartin - [2006] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 97 of 2005
THE QUEEN	v.
WAYNE BERNARD KILMARTIN

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JUDGES:	CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2006
DATE OF JUDGMENT:	9 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 12

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CRIMINAL LAW – Sentencing – Armed robbery and intentionally causing injury – Plea of guilty – Totality – Rehabilitation – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr G.F. Meredith	Victoria Legal Aid

CHARLES, J.A.:

On 25 November 2004, the appellant pleaded guilty in the County Court at Sale to a presentment alleging one count of theft (count 1), one count of armed robbery (count 2), and one count of intentionally causing injury (count 3). The maximum penalty for armed robbery was 25 years, and for intentionally causing injury and theft, was in each case 10 years' imprisonment respectively. The appellant admitted 16 prior convictions and 13 findings of guilt from seven court appearances between August 1998 and August 2002, including prior convictions for assault, assault with a weapon, harassing a witness, theft, making a false document and obtaining property by deception.

On 4 April 2005, the judge sentenced the appellant as follows: on count 1, two years', on count 2, four years', and on count 3, three years' imprisonment respectively. The judge ordered that the sentences be served concurrently save for six months of the sentence in respect of count 1, which he ordered to be served cumulatively upon the sentence on count 2. The total effective sentence was therefore four years and six months' imprisonment, and his Honour set a non-parole period of three years.

The appellant now appeals on the following grounds:

1.The sentences both individually and in totality were manifestly excessive, both as to head sentence and non-parole period;

2. The judge erred in his orders concerning cumulation of count 1;
3.The judge did not take into account sufficiently or at all the appellant's plea of guilty;
4.The judge did not take into account sufficiently or at all the appellant's prospects of rehabilitation;
5.The judge erred in failing to take into account the 190 days' imprisonment served in respect of offences for which the appellant was sentenced on 29 September 2004.

The facts giving rise to these offences were as follows. In February 2004 the appellant went to the Latrobe Regional Hospital in Traralgon in company with his partner and her sister. While waiting to see a doctor, he decided to take a hospital thermometer that had been left on a bench in the waiting room. It was valued at $1,000. He stole the thermometer, but it has, however, been returned to the hospital. (Count 1).

On 3 March 2004, at about 4 p.m., the appellant visited a married couple, Damien and Dionne Bird, with whom he was acquainted, at 30 Phillip Street, Moe. Mr and Mrs Bird were living at the…

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 Kilmartin

Details

AGLC: R v Kilmartin [2006] VSCA 12
Case: [2006] VSCA 12
Decision Date: 9 February 2006

CaseChat Overview and Summary

In the matter of R v Kilmartin, the appellant, Kilmartin, pleaded guilty to charges of armed robbery and intentionally causing injury. The case was heard by the court of appeal. The primary dispute centred around the sentencing of the appellant, who had committed these serious offences. The trial judge had sentenced Kilmartin to a term of imprisonment, which the appellant sought to have reviewed by the court of appeal.

The legal issues that the court had to address included whether the original sentence was appropriate, whether the totality principle was correctly applied, and what weight should be given to the appellant's prospects of rehabilitation. The court needed to determine if the sentence was excessive, disproportionate, or manifestly inadequate, and whether the sentence should be varied to reflect the totality of the appellant’s offending. Additionally, the court had to consider the appellant's prospects for rehabilitation and the likelihood of reoffending.

The court of appeal found that the original sentence was manifestly inadequate, given the seriousness of the crimes committed. The court held that the totality principle required consideration of the cumulative effect of the offences, and the sentence needed to reflect the aggregate seriousness. The court also acknowledged the appellant's prospects for rehabilitation and his prospects of not reoffending. Ultimately, the court decided that a new sentence should be imposed, one that was commensurate with the totality of the appellant's offending and that provided an opportunity for rehabilitation. The court resentenced the appellant to a term of imprisonment, which it deemed appropriate under the totality principle and in light of the appellant's prospects for rehabilitation.

Orders