R v Kur - [2021] VSC 501

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0084

THE QUEEN	Crown
v
CHOL KUR	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	21, 22, 23 June, 2 July & 3 August 2021
DATE OF SENTENCE:	17 August 2021
CASE MAY BE CITED AS:	R v Kur
MEDIUM NEUTRAL CITATION:	[2021] VSC 501

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CRIMINAL LAW – Sentence – Robbery carried out by accused and co-offender – Targets were two young people waiting at a bus stop – Accused subject to youth parole at time of crime – Third offender joined in attack upon victims, killing one and seriously injuring the other – Accused originally charged with murder – Long period on remand – Significant criminal history for similar offending – Early offer to plead guilty - Lack of remorse – Youthfulness – Assessed as unsuitable for a community correction order – Sentencing considerations – Proportionality – Protection of community - Sentenced to be imprisoned for 323 days with corresponding declaration as to pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Ms S Lenthall	Ms A Hogan, Solicitor for Public Prosecutions
For Chol Kur	Mr R Edney	Balmer & Associates

HIS HONOUR:

Introduction

Chol Kur, you have pleaded guilty to a charge of robbery, and admitted prior convictions. Your robbery was of a young man named Nathanial Hakiwai (‘Nathanial’) and took place in the middle of the day at a bus stop on a busy suburban street in the north-west of Melbourne. While you and your co-offender, AM,[1] were in the process of carrying out your crime, a friend of yours, Joshua Horton (‘Horton’), carried out attacks using a knife upon the younger brother of Nathanial, Maaka, and then upon Nathanial himself. Maaka was killed and Nathanial was seriously injured. You are not responsible for those crimes.
[1]AM was charged as a child and sentenced by me on 2 July 2021. See the published sentence at R v AM [2021] VSC 397.

The maximum penalty for the crime of robbery is imprisonment for 15 years.

Background

Nathanial was aged 18 at the time of the events. His younger brother Maaka was 17, having celebrated his birthday only ten days before his death. They are the two sons of Stirling and Karli Hakiwai. Mr Hakiwai was from New Zealand of Maori background. He moved to Australia in 1999, meeting his eventual wife shortly after his arrival. They have four children together, the younger two being sisters for Nathanial and Maaka named Leilani and Kiripaeahi.

For some years, the family lived on the Gold Coast while Mr Hakiwai worked in various locations on a fly-in fly-out basis. In May 2019, however, he secured new employment in Melbourne. He relocated here in June 2019, and was joined in turn by Maaka and then Nathanial. It was planned that his wife Karli and the two younger children would move to Melbourne to join Stirling and the…

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 Kur

Details

AGLC: R v Kur [2021] VSC 501
Case: [2021] VSC 501
Decision Date: 17 August 2021

CaseChat Overview and Summary

The matter of R v Kur was heard in the Supreme Court of Victoria. The defendant, Kur, was charged with robbery, having committed the offence with two co-offenders against two young individuals at a bus stop. The attack resulted in the death of one victim and serious injury to the other. Kur, who was under youth parole at the time, had a significant criminal history and had shown no remorse for the crime.

The court was tasked with determining an appropriate sentence, taking into account the severity of the crime, the defendant's criminal history, and the fact that he was a repeat offender. Additionally, the court needed to consider the proportionality of the sentence, the need to protect the community, and the defendant's youth and lack of remorse. The court also needed to weigh the impact of the lengthy time Kur had spent on remand against the need for deterrence and denunciation.

The court ultimately decided that a sentence of imprisonment was necessary, given the severity of the crime and the defendant's criminal history. However, the court also took into account the fact that Kur had shown some willingness to plead guilty early on, and that he had been on remand for a significant period of time. The court ultimately sentenced Kur to 323 days in prison, with a corresponding declaration as to pre-sentence detention. This sentence was deemed appropriate given the need to balance the need for punishment, deterrence, and community protection, with the defendant's youth and the fact that he had shown some willingness to take responsibility for his actions.

Orders