R v White - [2008] VSC 39

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1475 of 2007

THE QUEEN

WALLY WHITE

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	15–19, 22–26, 29, 30, 31 October 2007, 1–2, 5, 7–9, 12–17 November 2007 and 29 January 2008
DATE OF SENTENCE:	28 February 2008
CASE MAY BE CITED AS:	R v White
MEDIUM NEUTRAL CITATION:	[2008] VSC 39

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CRIMINAL LAW – Sentence – Murder (1 count) – Armed robbery (1 count) – Murder of security guard in course of armed robbery – Pleas of not guilty – 22 years’ imprisonment for murder and 7 years for armed robbery – Total effective sentence after cumulation 26 years with a non-parole period of 20 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC with Mr T Wallwork	Solicitor for Public Prosecutions
For the Accused	Mr W Stuart	Dowling McGregor Thomas

HIS HONOUR:

Wally Rawiri White, in May 2007 you were arraigned on one count of murder and one count of armed robbery. You pleaded not guilty to those charges. In June 2007 the jury hearing those charges was discharged. The jury had been unable to agree upon a verdict.

You were re-arraigned in October 2007 on the same charges and you again pleaded not guilty. On 17 November 2007 the jury in that second trial found you guilty of the crimes of armed robbery and murder. On 29 January 2008 I heard a plea on your behalf.

The maximum penalty for murder is life imprisonment. The maximum penalty for armed robbery is 25 years’ imprisonment.

The armed robbery and the murder occurred on 28 November 2004 at the Freccia Azzurra Club in Springvale Road, Keysborough. The victim of the murder was Jason Gully. Mr Gully was employed at the Club as a security guard. He had been employed in that capacity following an armed robbery that had occurred at the Club on 2 November 2004.

In the armed robbery on 28 November 2004, where Mr Gully was murdered and which I will refer to as the second armed robbery, you were accompanied by two co-offenders, named John Kohunui and Tame Kohunui. John and Tame Kohunui are brothers. They had also taken part in the armed robbery at the same club that had occurred on 2 November 2004, which I will refer to as the first armed robbery. A third person, Mark Herbert, committed that first armed robbery with them. You were not involved in the first armed robbery.

In the second armed robbery John Kohunui and Tame Kohunui were armed with knives, as they had been in the first armed robbery. You brought a firearm to the second armed robbery. It was a high powered rifle, similar to an AK 47. The rifle was identified by a firearms expert in the course of your trial as a Valmet Hunter.

According to the evidence of John Kohunui in your second trial, he and his brother, Tame, had seen a…

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 White

Details

AGLC: R v White [2008] VSC 39
Case: [2008] VSC 39
Decision Date: 28 February 2008

CaseChat Overview and Summary

The defendant, White, was convicted of one count of murder and one count of armed robbery. The murder occurred during the course of an armed robbery, where the victim, a security guard, was killed. White pleaded not guilty to both charges. The court heard that White and his accomplices had planned and executed a robbery, during which the security guard was fatally shot. The prosecution sought a severe sentence, given the heinous nature of the crime.

The legal issues before the court were the appropriate sentence for each offence and whether the sentences should run concurrently or consecutively. The court needed to consider the principles of sentencing for murder and armed robbery, including the need for general and specific deterrence, as well as retribution and rehabilitation. The court also had to weigh the circumstances of the crime and the defendant's background in determining the appropriate sentence.

The court found that the murder was premeditated and executed with cold calculation, warranting a substantial sentence. The armed robbery was equally serious, given the violence involved and the significant harm caused to the victim. The court determined that the sentences should run consecutively, as the crimes were separate and distinct, and the severity of each warranted a severe penalty. After considering the totality of the circumstances, the court sentenced White to 22 years for the murder and 7 years for the armed robbery, with a total effective sentence of 26 years and a non-parole period of 20 years. The court emphasised the need for severe punishment to reflect the gravity of the crimes and to deter similar conduct in the future.

Orders