Legal Research
Cases
Whitten v The King

Whitten v The King

Case [2023] VSCA 181 8 August 2023

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0182

JAI WHITTEN	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2023
DATE OF JUDGMENT:	8 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 181
JUDGMENT APPEALED FROM:	DPP v Whitten [2022] VCC 1753 (Judge Chettle)

---

CRIMINAL LAW – Appeal – Sentence – Arson and reckless conduct endangering serious injury – Whether aggregate sentence of 4 years’ imprisonment with non-parole period of 2 years and 9 months manifestly excessive – Leave to appeal refused.

---

Counsel
Applicant		Mr J Connolly
Respondent		Ms J Warren
Solicitors
Applicant	Stary Norton Halphen
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
J FORREST AJA:

On 4 October 2022, the applicant, aged 25 years,[1] pleaded guilty before a judge in the County Court to arson[2] (charge 1) and reckless conduct endangering serious injury[3] (charge 2).
[1]His date of birth is 17 April 1998.
[2]Crimes Act 1958, ss 197(1) and (6). The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 23. The maximum penalty is five years’ imprisonment.
Following a plea, on 11 October 2022 the judge sentenced the applicant to an aggregate sentence[4] of four years’ imprisonment, and fixed a non-parole period of two years and nine months.[5]
[4]See Sentencing Act 1991, s 9(1).
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to be imprisoned for seven years, with a non-parole period of four years and six months.
The applicant now seeks leave to appeal on a single ground that contends that the aggregate sentence and the non-parole period are manifestly excessive.
For the reasons that follow, we would refuse leave to appeal.
It appears that the applicant set fire to residential premises, thereby endangering a number of occupants, for no better reason than he thought that one of the residents had been sleeping with a casual girlfriend. The offending occurred as follows.
At about 3.20 am on 26 October 2021, the applicant was picked up from his apartment in St Kilda by a person unknown driving a white Maserati. About ten minutes later, the Maserati arrived at a Coles Express Petrol Station in Barkly Street, St Kilda. The applicant paid cash for two jerry cans which he then filled with unleaded petrol, once more paying cash. He put both jerry cans in the car, then got into the front passenger seat. The Maserati then drove off and travelled south along Barkly Street.
At 3.54 am, the white Maserati parked outside 113 Spray Street, Elwood. At that time, Mr George Lewis was sleeping at his house at 62 Glen Huntly Road, Elwood, part of a two-story building which occupies 60 to 82 Spray Street. The building is attached to 64 Glen Huntly Road on the east, and 82 Spray Street to the west.
The applicant…

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 Whitten v The King

Details

AGLC: Whitten v The King [2023] VSCA 182
Case: [2023] VSCA 181
Decision Date: 8 August 2023

CaseChat Overview and Summary

The case of Whitten v The King involved the appellant, who was convicted of arson and reckless conduct endangering serious injury. The appellant was sentenced to a total of 4 years imprisonment with a non-parole period of 2 years and 9 months. The appellant applied for leave to appeal against the sentence, arguing that it was manifestly excessive. The application was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court was required to consider the principles of sentencing, including the gravity of the offences, the appellant's culpability, and the need for deterrence and rehabilitation. The court was also required to consider the appellant's personal circumstances, including his age, background, and prospects of rehabilitation.

The court found that the sentence was not manifestly excessive. The court noted that the offences were serious and involved a significant degree of recklessness. The court also noted that the appellant had a history of criminal behaviour and had shown little remorse for his actions. However, the court found that the sentence was proportionate to the seriousness of the offences and took into account the appellant's personal circumstances. The court also noted that the sentence included a significant non-parole period, which was necessary to ensure public safety and to provide the appellant with an opportunity to rehabilitate.

The court refused the appellant's application for leave to appeal against the sentence. The court found that the sentence was not manifestly excessive and that the appellant had not demonstrated that the sentence was unjust or disproportionate. The court also noted that the appellant had not provided any new evidence or argument that would warrant a review of the sentence.

Orders