R v Kilmartin

[2006] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 97 of 2005
	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.:

1. 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. 

1. 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.

1. 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.

1. 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). 

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 house with their three children, all aged four years or younger, and Mrs Bird was then 16 weeks pregnant.  The appellant had become aware that the Birds were in possession of a substantial amount of cash which had been obtained to buy a car.  Having been invited into the house for a cup of coffee, the appellant left the lounge room, stating that he needed to use the toilet.  He walked through the kitchen and armed himself with a kitchen knife, approximately 15 centimetres long.  Returning to the lounge room, he spoke to Mr. Bird, asking if he could see his computer, which was in a bedroom.  The two men went to the bedroom, at which point the appellant produced the kitchen knife from his trousers and said to Mr. Bird, "Give me the money."  Mr Bird walked past the appellant, attempting to escape from the room, and the appellant then said, "I'll kill you if you don't give me the money."  Mr Bird walked to the lounge room, picked up a box containing $5,785 in cash and handed a bundle of notes to the appellant, telling him to leave the house.  He then ran out of the house, with the appellant in pursuit, demanding the remainder of the money.  Mr. Bird returned to the house and tried to lock the door to keep the appellant outside, but the appellant forced his way in.  Mr Bird handed the remaining cash to his wife.  The appellant then moved towards her, brandishing his knife within one-and-a-half metres of her.  He said to her, "Give me the money or I'll kill you."  Damien Bird then placed himself between the appellant and Dionne Bird, who then handed the remainder of the cash back to her husband.  Mr Bird placed the money inside his trousers and walked towards the front door.  The appellant then advanced towards him, putting the knife two or three inches from Mr. Bird's throat.  Mr Bird grabbed the blade of the knife and wrested it from the appellant, cutting his thumb in the process.  In the ensuing struggle, the appellant punched Mr Bird to the head several times.  The appellant then grabbed Mr Bird by the throat and began to choke him, to a point where he was unable to breathe and his face began to change colour.  Mr Bird then grabbed some more notes from his underpants and threw them at the appellant, who took them and left the house.  The total amount stolen in this incident was $2,625.  (Counts 2 and 3). 

1. The appellant was arrested on 23 March 2004 and interviewed in relation to the theft of the thermometer and also in relation to the remaining two counts.  He gave "no comment" responses to all questions. 

1. It is unnecessary to deal with the grounds of the appeal.  The judge's sentencing reasons comprise twelve paragraphs in less than two pages.  After recounting very briefly some of the circumstances of the offences and making short comments on the appellant, his Honour said:

"In arriving at a sentence, I have allowed a discount of four years on the theft, eight years on the armed robbery, and four years on the intentionally cause injury, on the basis of your pleas of guilty.  I have had regard to your youth and to your constructive and positive prison involvement."

The judge then proceeded to announce the sentences on the individual charges and the total effective sentence. 

1. Mrs Quin for the Crown very properly accepted that the judge's reasoning was quite indefensible, and that the sentencing discretion had been re-opened.  We accordingly treated the appeal as a plea.

1. During the plea, the case made for the appellant was that he was arrested in relation to these matters on 23 March 2004.  There were then two outstanding warrants for the Magistrates' Court that were executed on that day and they were ultimately dealt with at Moe Magistrates' Court on 29 September 2004.  On that day he received a total effective sentence of 190 days' imprisonment, which was the entirety of the time from 23 March until 29 September.  At the Moe Magistrates' Court on 29 September, the appellant pleaded guilty to eleven charges of driving whilst disqualified, for which he received 190 days' imprisonment, two counts of intentionally causing injury, two charges of handling stolen goods, two charges of theft, one of hindering police, one of possessing a firearm, and two of failing to appear, all of which resulted in short sentences of imprisonment made cumulative with the 190 days previously referred to.  There were also charges of possessing and using cannabis, driving an unregistered vehicle, using false number plates and exceeding the speed limit.  For these additional charges he received an aggregate fine of $1,000.  It was put to the court none the less that the hearing in September cleaned up all matters that were outstanding against him.  It had the consequence, of course, that the appellant had spent the previous eleven months in custody, which it was submitted on grounds of totality should be taken into account by the judge in imposing sentence.  It was argued that notwithstanding his considerable prior record, until this period of incarceration he had never previously been in gaol, he was still a young man, only just 24, he had pleaded guilty to these offences, and had some prospects of rehabilitation.  It was said that since he had been in custody he had responded well, maintaining full-time employment in the prison laundry and had taken courses in anger management.  It was argued that his conduct portrayed at least some level of insight into his offending and some acknowledgment that there were matters in his personal life that could be improved.  It was argued that it would be appropriate upon his release from prison for there to be a period of supervision under the Parole Board.

1. The armed robbery was, I think, a very serious example of a serious offence.  The appellant had been invited into the premises by people with whom he was acquainted.  It was for this reason that the circumstances did not give rise to a burglary, but his entry rapidly developed into a home invasion with terrifying consequences for the inmates and actual violence brought to bear on them.  The application of this violence to Mr and Mrs Bird had as an aggravating feature that it took place in the presence of their children. 

1. In all these circumstances, taking into account the fact that the appellant had been incarcerated since 23 March 2004, his plea of guilty, his comparative youth and that he had some prospects of rehabilitation, I would sentence the appellant as follows:  on count 1, to six months' imprisonment;  on count 2, four years' imprisonment;  and on count 3, 18 months' imprisonment.  I would order that three months of the sentence imposed on count 1 be made cumulative upon the sentence imposed on count 2, making a total effective sentence of four years and three months' imprisonment.  I would fix a non-parole period of two years and six months.

VINCENT, J.A.: 

1. I agree.

MANDIE, A.J.A.:

1. I also agree.

CHARLES, J.A.: 

1. The orders of the Court accordingly are:

The appeal is allowed.

The sentences imposed on 4 April 2005 are set aside.

In lieu thereof the appellant is sentenced as follows:

1.        On count 1, six months' imprisonment.

2.        On count 2, four years' imprisonment.

3.        On count 3, 18 months' imprisonment.

The Court orders that three months of the sentence on count 1 be served cumulatively on that imposed on count 2, making a total effective sentence of four years and three months. 

The Court fixes a non-parole period of two years and six months.

The Court declares that as at this day the period of 499 days has been served under the sentence and directs that the making of this declaration and its details be noted in the records of the Court.

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