R v Kittson - [2008] VSCA 77

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 232 of 2007

THE QUEEN
	v
STUART JOHN KITTSON

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JUDGES:	WARREN CJ and REDLICH JA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2008
DATE OF ORDERS	5 May 2008
DATE OF REASONS:	16 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 77

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CRIMINAL LAW – Sentencing – Appeal – Multiple counts of armed robbery – Offender’s voluntary disclosure of offence – Offences at lowest end of range – Appeal allowed – Re-sentenced

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr P J Morrissey	Victoria Legal Aid

WARREN CJ:

I agree with the reasons of Forrest AJA and joined in the orders made 5 May 2008. I would emphasise that armed robbery is a very serious crime usually warranting a stern sentence. The appellant’s circumstances were very unusual and, therefore, warranted the sentence the Court imposed for the reasons his Honour gives.

REDLICH JA:

For the reasons given by Forrest AJA I joined in the orders pronounced on 5 May 2008.

FORREST AJA:

Introduction

The appellant, Stuart Kittson, pleaded guilty in the County Court to one count of armed robbery (Count 1) and two counts of attempted armed robbery (Counts 2 and 3). On Count 1, the appellant was sentenced to two years’ imprisonment. On Counts 2 and 3, the appellant was sentenced to one year’s imprisonment on each count. The sentencing judge then directed that six months of the sentences for Counts 2 and 3, the attempted armed robbery charges, be served cumulatively upon each other and upon the sentence for Count 1 (the armed robbery charge), making a total effective sentence of three years’ imprisonment. His Honour directed that a non-parole period of 15 months be fixed.

On 17 January 2008 a judge of this Court granted the appellant leave to appeal pursuant to s 582 of the Crimes Act1958.

The Appeal

In both written and oral submissions, senior counsel for the Crown accepted that the sentencing judge fell into error in fixing the sentence imposed on Count 2. It

was apparent, by comparison with the penalty imposed on Count 3, that the sentencing judge had not made any allowance for the fact that the offending the subject of Count 2 was voluntarily disclosed by the appellant to the police. Otherwise this offence would have gone unreported. The appellant’s actions were a significant mitigatory consideration[1] which should have led to a lesser sentence on Count 2.

[1]R v Ellis (1986) 6 NSWLR 603, 604; R v Brazel (2005) 153 A Crim R 152, [21]-[22]

It was accepted by senior counsel for the Crown that this error led to the sentencing discretion of this Court being re-opened on each of the counts and the oral argument on appeal was devoted to that issue.

At the conclusion of the hearing of the appeal, the Court made the following orders:

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 Kittson

Details

AGLC: R v Kittson [2008] VSCA 77
Case: [2008] VSCA 77
Decision Date: 16 May 2008

CaseChat Overview and Summary

The case of R v Kittson involved the appellant, Kittson, who was convicted and sentenced for multiple counts of armed robbery. Kittson appealed his sentence on the grounds that it was excessive. The appeal was heard in the court of appeal. The central legal issue before the court was whether the original sentence imposed on Kittson was manifestly excessive given the circumstances of the case, particularly considering his voluntary disclosure of the offences and the fact that the crimes fell at the lower end of the sentencing range for such offences. The court had to determine if the sentencing judge had erred in failing to adequately account for these mitigating factors.

The court of appeal found that the sentencing judge had indeed failed to give appropriate weight to Kittson's voluntary disclosure and the fact that the robberies were at the lower end of the range for such offences. The judges emphasised the importance of voluntary disclosure as a significant mitigating factor and noted that it warranted a reduction in the sentence. Furthermore, the court considered the totality of the circumstances, including the nature of the offences and the offender's background, and concluded that the original sentence was manifestly excessive. Accordingly, the appeal was allowed, and Kittson was re-sentenced to a term that more appropriately reflected the mitigating factors present in the case.

In light of the above considerations, the court of appeal ordered a re-sentencing of Kittson. The new sentence was intended to reflect a more balanced approach, taking into account the mitigating factors of voluntary disclosure and the relatively lower severity of the offences. The court did not specify the exact term of the new sentence but made it clear that it was significantly reduced from the original sentence imposed.

Orders