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Tonkin v The King

Tonkin v The King

Case [2023] VSCA 194 23 August 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0187

DANIEL TONKIN	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2023
DATE OF JUDGMENT:	23 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 194
JUDGMENT APPEALED FROM:	[2022] VCC 1485 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – Kidnapping – Extortion with threat to inflict injury – Common assault – Theft – Principle of totality – Whether amount of cumulation appropriate given common factual basis of offences – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Manifest excess – Whether in all the circumstances the sentence was excessive – Leave to appeal refused.

Crimes Act 1958 ss 27, 63A, 74.

Azzopardi v The Queen (2011) 35 VR 43, Bogdanovich v The Queen [2011] VSCA 388, Brown v The Queen [2017] VSCA 268, DPP (Vic) v Marino [2011] VSCA 133, House v The King (1936) 55 CLR 499, Whitten v The King [2023] VSCA 181.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
J FORREST AJA:

On 13 May 2022, after a plea of not guilty and a three week trial, a jury found Daniel Tonkin, the applicant, guilty of one count of kidnapping,[1] one count of extortion with threat to inflict injury,[2] one count of common assault and one count of theft.[3]
[1]Contrary to Crimes Act 1958 s 63A.
[2]Contrary to Crimes Act 1958 s 27(a).
[3]Contrary to Crimes Act 1958 s 74(1).
The applicant was born on 26 April 1992 and at the time of sentencing was 30 years of age.
The judge sentenced the applicant on the kidnapping count to 4 years and 3 months’ imprisonment (25 years maximum penalty), on the extortion count to 3 years and 3 months’ imprisonment (15 years maximum penalty), on the common assault count to 2 years’ imprisonment (five years maximum penalty), and on the theft count to imprisonment of 1 year (10 years maximum penalty).
The kidnapping sentence was the base sentence. The judge cumulated 12 months, 6 months and 4 months (a total of 22 months) on the base for the extortion, assault and theft respectively. The total effective sentence imposed was 6 years and 1 month imprisonment with 4 years set as a non-parole period.
Two co-accused, Javanov and Chand who also pleaded not guilty to similar charges were also found guilty. A fourth co-offender, Ulutui was charged with one count of extortion with threat to inflict injury, one count of common assault and one count of theft.
The applicant, Javanov and Chand were sentenced together on 12 September 2022 by her Honour Judge Riddell.[4] Ulutui was sentenced on 29 June 2023, also by her Honour.[5]
[4]DPP (Vic) v Tonkin [2022] VCC 1485 (‘Reasons’).
[5]DPP (Vic) v Ulutui [2023] VCC 1120 (‘Ulutui’).

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 Tonkin v The King

Details

AGLC: Tonkin v The King [2023] VSCA 194
Case: [2023] VSCA 194
Decision Date: 23 August 2023

CaseChat Overview and Summary

The appellant, Tonkin, appealed against his sentence following his conviction for various offences including kidnapping, extortion with a threat to inflict injury, common assault, and theft. The case was heard in the Victorian Court of Appeal. The central issue for the court was whether the cumulative sentence imposed was appropriate given the common factual basis of the offences, and whether the sentence was manifestly excessive. The court considered the principle of totality, which is the requirement that the cumulative sentence for multiple offences should not be disproportionately high relative to the gravity of the individual offences.

The court examined the principle of totality and the need to ensure that the cumulative sentence does not exceed what is appropriate given the common factual basis of the offences. The court considered the nature and severity of each offence and the appellant's criminal history. It also assessed whether the sentence was manifestly excessive in all the circumstances. The court referred to previous cases such as Azzopardi v The Queen and Whitten v The King to guide its assessment. Ultimately, the court determined that the sentence was not manifestly excessive and was appropriate given the nature and circumstances of the offences.

The court found that the sentence was within the range of what could be considered appropriate for the combination of offences committed. The court was satisfied that the trial judge had adequately considered the principle of totality and the need to avoid a disproportionate cumulative sentence. The court also rejected the argument that the sentence was manifestly excessive, noting the severity of the offences and the appellant's criminal history. Consequently, the appeal was dismissed, and leave to appeal to the High Court was refused.

There were no further orders made by the court beyond the refusal of leave to appeal. The sentence imposed by the trial court was upheld as appropriate and not manifestly excessive.

Orders