R v Kittikhoun - [2004] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 273 of 2003

THE QUEEN
	v.
NOI KITTIKHOUN

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JUDGES:	CHERNOV and VINCENT, JJ.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 October 2004
DATE OF JUDGMENT:	14 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 194	First Revision: 3 November 2004

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Criminal Law - Sentencing - Armed Robbery using sawn-off shotgun (12 counts) - "Soft targets" - Importance of general deterrence - Total effective sentence of 10 years' imprisonment with minimum term of 7 years not manifestly excessive - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Ellinghaus & Lindner

CHERNOV, J.A.:

The appellant, Noi Kittikhoun, who is now aged 27, pleaded guilty in the County Court at Melbourne on 3 September 2003 to twelve counts of armed robbery (counts 1, 2, 4, 5 and 8 - 15), one count of attempted armed robbery (count 3) and two counts of false imprisonment (counts 6 and 7). The maximum custodial penalty for armed robbery is 25 years and for attempted armed robbery, 20 years. The appellant had one prior conviction for theft from a court appearance in 1994 but his Honour treated it as being of little relevance. After hearing on 15 September 2003 a plea for leniency on behalf of the appellant, the learned sentencing judge imposed on him, on 24 September 2003, a total effective sentence of 10 years' imprisonment with a minimum term of seven years before being eligible for parole. More particularly, the appellant was sentenced to four years' imprisonment on each count of armed robbery and to two years' imprisonment on the count of attempted armed robbery. A sentence of 12 months' imprisonment was imposed on each count of false imprisonment. His Honour directed that six months of the sentence imposed on each of counts 2 to 5 and 8 to 15 be served cumulatively upon that imposed in respect of count 1 and upon each other and that each of the sentences imposed on counts 6 and 7 be served concurrently with that imposed on count 1. In addition, his Honour made compensation orders, to a total value of $27,367, requiring the appellant to compensate the owners of each of the stores robbed.

On 6 October 2003 the appellant filed a notice of application for leave to appeal against sentence that contained two grounds. The grounds were amended by leave of the Registrar, given on 14 April 2004, by the addition of two further grounds. On 4 June 2004 a judge of this Court granted the appellant leave to appeal against the sentence and on 7 June 2004 the appellant added a further ground of appeal pursuant to leave of the Registrar. Before dealing with the grounds that were argued by Mr Holdenson for the appellant, I shall set out briefly the circumstances of the appellant's offending conduct, which took place over a period of approximately…

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 Kittikhoun

Details

AGLC: R v Kittikhoun [2004] VSCA 194
Case: [2004] VSCA 194
Decision Date: 14 October 2004

CaseChat Overview and Summary

The appeal was brought by the respondent, Kittikhoun, against his conviction and sentence for armed robbery. The respondent, armed with a sawn-off shotgun, committed twelve counts of armed robbery against so-called "soft targets", including elderly women and people with disabilities. The respondent was sentenced to a total effective term of imprisonment of 10 years, with a non-parole period of 7 years. The appeal focused on the length of the non-parole period, which the respondent argued was manifestly excessive.

The court needed to determine whether the sentence imposed by the trial judge was manifestly excessive. In particular, the court considered the nature of the offences, the respondent's criminal history, and the importance of general deterrence. The court noted that the respondent had a history of offending, including previous armed robberies, and had shown a willingness to use a firearm during these offences. The court also considered the impact of the offences on the victims, who were particularly vulnerable.

In assessing the sentence, the court noted that the trial judge had considered the appropriate punishment and deterrence for the offences. The court held that the sentence was not manifestly excessive, taking into account the totality of the circumstances. The court found that the trial judge had given appropriate weight to the need for general deterrence, given the nature of the offences and the respondent's criminal history. The court held that the sentence reflected the seriousness of the offences and was sufficient to achieve the aims of punishment and deterrence.

The appeal was dismissed, and the conviction and sentence were upheld. The respondent's sentence of 10 years' imprisonment, with a non-parole period of 7 years, was not considered manifestly excessive.

Orders