R v Kitchin - [2001] VSCA 66

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 154 of 2000

THE QUEEN

v.

TROY ALLAN KITCHIN

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JUDGES:

WINNEKE, P., BROOKING and CHARLES, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

14 May 2001

DATE OF JUDGMENT:

14 May 2001

MEDIUM NEUTRAL CITATION:

[2001] VSCA 66

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Criminal law - Evidence - Concert and aiding and abetting - Conduct after crime relevant.
Criminal law - Sentence - "Assisting an offender" - Aggravating features of principal offence relevant - Murder as principal offence - Assistor possible participant in murder - Proper sentencing approach.
Crimes Act 1958, s.325.

APPEARANCES: Counsel Solicitors

For the Crown Ms S. Pullen S.Carisbrooke, Acting Solicitor for Public Prosecutions

For the Appellant Mr M. Taft Andrew George
WINNEKE, P.:
1 Brooking, J.A. will give the first judgment in this appeal.

BROOKING, J.A.:
2 On 28 March 1999 Elijah Wolf Ross was murdered in horrifying circumstances. He was a cultivated man of wide interests and unusual background - dealt with in the judge's reason for sentence - who travelled about the country in a small campervan. He did nothing to contribute in the slightest degree to the brutal attack which led to his death. He was one of four men working as pickers at a tomato farm. The other three were David John Scott, Troy Allan Kitchin and John Geoffrey Swallow. Scott often went by the name of Bob Mann because he had absconded while on bail in Queensland for sexual offences against children. Scott and Kitchin had become friends some months before the killing. They had come down together from the Northern Territory, working in various labouring jobs. They shared a tent on the tomato farm at Strathallan. Swallow too had a tent. The victim, Ross, lived in his campervan, which was parked a short distance from the tents, but closer to Swallow's than to the two- man tent. The two tents were in diagonal corners of a high open shed.

3 On the night of 27 March 1999 the four men sat around a camp fire in the shed, talking. Kitchin was drinking cask wine, but none of the other three was drinking alcohol. Ultimately Swallow went to his tent to sleep and Ross to his van. The other two, Scott and Kitchin, remained talking by the camp fire for hours.

4 As dawn was breaking Swallow was awoken by a terrible scream coming from the campervan. He quickly emerged from his tent, but was tackled and brought to the ground by Kitchin, who said to him, "Don't go over there or you will get killed". Scott had attacked the sleeping Ross in his van, opening the sliding door and leaning in and stabbing him repeatedly with a 70mm bayonet. (the bayonet belonged to Kitchin.) Despite his injuries Ross managed to close the door and lock it.

Scott then approached Kitchin and Swallow and said, "Find me a bit of wood or rock to smash the window. The coward has locked himself in". Neither man moved, and…

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 Kitchin

Details

AGLC: R v Kitchin [2001] VSCA 66
Case: [2001] VSCA 66
Decision Date: 14 May 2001

CaseChat Overview and Summary

In the case of R v Kitchin, the Court of Appeal of the Supreme Court of Victoria dismissed an appeal against sentence brought by Troy Allan Kitchin, who had been convicted of assisting an offender. Kitchin had been found guilty of assisting David John Scott, who was convicted of murder, in the killing of Elijah Wolf Ross. The appeal raised three grounds, focusing on the sentencing judge's consideration of Kitchin's cooperation with the police, the speculative reasoning used in drawing factual conclusions, and the excessiveness of the sentence. The court found that while the sentencing judge may have erred in some respects, the sentence was appropriate given the gravity of the principal offence and the extent of Kitchin's assistance. The appeal was dismissed, and the original sentence of seven years with a non-parole period of five years was upheld.

Orders