R v Knell - [2001] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 254 of 2000

THE QUEEN

MATTHEW GEORGE KNELL

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2001
DATE OF JUDGMENT:	17 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 82

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Criminal law - Sentence - Eight armed robberies by a 30-year-old heroin addicted man with impeccable prior character - Total sentence of 5 years with 3 years minimum - Full and voluntary co-operation with police - Not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss G. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr N. Papas and Mr M. Dempsey	Victoria Legal Aid

WINNEKE, P.:

This appeal is yet another stark reminder of the pernicious effect of heroin and its capacity to drive people of otherwise good character to commit crimes of violence in search of money. The appellant is in his early thirties. Between 21 August 1999 and 29 January 2000 he committed eight armed robberies on convenience stores and service stations. The first seven were committed within a time span of some three weeks in August and September 1999 and the eighth was committed some three months later. The modus operandi in each case was much the same: the selection of a target some distance from his residence, the concealment of his car, waiting for the store to be free of people other than the attendant, the wearing of an overcoat, hat or cap and a bandanna across the face, and the carrying of a syringe filled with blood or a blood-like substance. In each case the object of the exercise was to get cash, and his total proceeds from the eight robberies would seem to have been somewhere in the vicinity of $4,500. In each case the victim was threatened with the syringe and, not surprisingly, was extremely frightened.

The appellant was eventually apprehended after the last robbery in January 2000, during the course of which he was not wearing a bandanna and was apparently captured on the store's video surveillance apparatus. The image was publicised and the appellant identified. He was apprehended by police on 16 February 2000 and thereafter co-operated in the fullest fashion, not only conceding his part in the robbery in which he had been identified but confessing fully to the previous seven robberies.

The story which unfolded in the police interview and before the sentencing judge is a depressing although not entirely unfamiliar one. It provokes sympathy not only for the appellant but also for his family, who are obviously devoted to him. The appellant is a very intelligent young man who had, until his crimes, lived a useful and productive life. He was part of a close family unit and devoted many of his energies to community service. He was fit and healthy and a good sportsman. According to character evidence, he enjoyed an impeccable reputation. It appears that things commenced to go wrong in or about…

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 Knell

Details

AGLC: R v Knell [2001] VSCA 82
Case: [2001] VSCA 82
Decision Date: 17 May 2001

CaseChat Overview and Summary

The defendant, Knell, was convicted of eight armed robberies and appealed against the sentence of five years imprisonment, with a minimum of three years, imposed by the trial judge. Knell, who was 30 years old at the time of sentencing, had a history of heroin addiction and an otherwise impeccable character. The appeal focused on the severity of the sentence and whether it was manifestly excessive. The court of appeal was required to determine whether the trial judge correctly considered all relevant factors, including Knell's cooperation with the police and his personal circumstances, when determining the appropriate sentence.

The court of appeal examined the principles of sentencing for multiple offences and the need for a cumulative sentence that reflects the seriousness of the crimes committed. The appeal court considered the totality principle, which requires that the aggregate sentence for multiple offences should not be disproportionately severe. The court also evaluated the trial judge's assessment of Knell's cooperation with the police and his remorse, which were factors that could potentially mitigate the sentence. Furthermore, the court reviewed whether the sentence was manifestly excessive by comparing it with sentences imposed in similar cases.

In reviewing the sentence, the court of appeal found that the trial judge had appropriately considered all relevant factors, including Knell's full and voluntary cooperation with the police, his remorse, and his personal circumstances. The court held that the sentence was not manifestly excessive and confirmed the trial judge's decision. The appeal court emphasised the importance of the totality principle and the need for a sentence that reflects the seriousness of the crimes while also taking into account mitigating factors. The court concluded that the sentence was proportionate and appropriate in the circumstances.

The court of appeal dismissed the appeal and upheld the original sentence of five years imprisonment, with a minimum of three years. The court found that the trial judge had appropriately balanced the need for punishment and deterrence with the mitigating factors present in the case. The appeal court did not consider the sentence to be manifestly excessive and confirmed that it was proportionate to the crimes committed.

Orders