R v KV

Case [2022] VSC 805 14 December 2022

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IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0058

THE KING	Crown
v
KV	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2022 and 7 December 2022
DATE OF SENTENCE:	14 December 2022
CASE MAY BE CITED AS:	R v KV
MEDIUM NEUTRAL CITATION:	[2022] VSC 805

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SENTENCE — Manslaughter — Guilty plea — 16-year-old offender – Category A serious youth offence — Offender kicked and stomped on deceased’s head after deceased was struck by another — No prior convictions — No subsequent offending in the three years since the offence — Remorse — Very good prospects for rehabilitation — Young offender — Whether YJC sentence open — Whether exceptional circumstances — Sentenced to 2 years’ detention in a YJC imposed — Sentencing Act 1991 (Vic) ss 3(1), 5(3), 6AAA, 32.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson KC with Ms C Foot	Office of Public Prosecutions
For the Accused	Mr T Sawyer	SLKQ Lawyers

HER HONOUR:

Introduction

KV, you have pleaded guilty to the offence of manslaughter. The maximum sentence for that offence is 20 years imprisonment.[1]
[1]Level 3 imprisonment at the time of the offence pursuant to section 5 of the Crimes Act 1958 (Vic). The maximum penalty was increased to 25 years from 1 July 2020 by the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic) ss 3 and 9.

I received a number of exhibits during the plea hearing including the prosecution opening for your plea and I have taken all of the exhibits into account.[2]
[2]Exhibits P1 (Summary of prosecution plea opening); P2 (Prosecution submissions on sentencing); P3 (7 Victim Impact Statements); P4 (Screenshot of video extracted from Snapchat account of KV showing a single white Nike runner with red staining); P5 (Extract of messages exchanged between KV and LB on 26 December 2019); D1 (Summary of plea defence submissions dated 15 October 2022); D2 (Psychological report of Carla Ferrari dated 5 October 2022); D3 (Bundle of 9 character references); D4 (Youth Justice Pre-Sentence Report – Suitability for Youth Justice Centre Order dated 29 November 2022, prepared by Amelia Catchlove).

On 25 December 2019, you kicked and stomped on the head of Mr Clark at Mooroolbark. On 28 December 2019, Mr Clark died in hospital from the injuries you caused in combination with other injuries incurred in the moments before your offending.

You were aged 16 at the time of your offending, and you were between jobs at that time. You resided with your family at an address in Mooroolbark. Two other young persons were prosecuted for the events that led to Mr Clark’s death. BRP was charged with criminal damage, affray and common law assault and he pleaded guilty to those offences before Judge Hampel in the County Court on 7 October 2021. On 14 October 2021, he was convicted and sentenced to a 30-month Community Correction Order with 300 hours of unpaid community work.[3] HM…

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 KV

Details

AGLC: R v KV [2022] VSC 805
Case: [2022] VSC 805
Decision Date: 14 December 2022

CaseChat Overview and Summary

The case of R v KV involved a 16-year-old offender who was charged with manslaughter after participating in the fatal assault of a deceased individual. The deceased had already been struck by another individual before the defendant, KV, joined in by kicking and stomping on the deceased's head. KV pleaded guilty to manslaughter and was sentenced in the Children's Court of Victoria. The case raised questions about whether a Youth Justice Centre (YJC) sentence was appropriate and whether exceptional circumstances existed to warrant such a sentence.

The court had to consider several legal issues, including whether KV's actions constituted a category A serious youth offence, which is a prerequisite for a YJC sentence under the Sentencing Act 1991 (Vic) s 6AAA. The court also had to weigh the offender's remorse, prospects for rehabilitation, and lack of prior convictions against the severity of the offence. Given KV's age, lack of prior criminal history, and evidence of remorse, the court determined that a YJC sentence was appropriate, but also had to consider whether exceptional circumstances existed to warrant such a sentence.

In its judgment, the court determined that KV's actions did constitute a category A serious youth offence and that exceptional circumstances did exist. The court noted that KV's remorse, prospects for rehabilitation, and lack of subsequent offending since the offence were significant factors in favour of a YJC sentence. The court also considered the seriousness of the offence, which involved a fatal assault on a vulnerable individual, and the need to deter such behaviour. Ultimately, the court determined that a YJC sentence was appropriate and sentenced KV to two years' detention in a YJC imposed.

The court's decision in R v KV highlights the importance of considering a range of factors when sentencing young offenders. The court recognised the need to balance the seriousness of the offence with the offender's age, prospects for rehabilitation, and lack of prior criminal history. The court also emphasised the importance of considering exceptional circumstances when determining whether a YJC sentence is appropriate. The final orders in the case were that KV was sentenced to two years' detention in a YJC imposed, with a non-parole period of 12 months.

Orders