The Queen v Kilic

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on sentencing guidelines and ‘manifestly excessive’ sentences. The respondent pleaded guilty to intentionally causing serious injury after he doused his partner in petrol and set her alight. The offence carried a maximum penalty of 20 years, and the sentencing judge sentenced the respondent to 15 years imprisonment. The VSCA held that the sentence significantly exceeded those previously given for convictions that involved more horrific assaults and where defendants did not show remorse, were young, or made an early guilty plea (as had all occurred here), and reduced it to 10 years and 10 months imprisonment. Appealing the VSCA decision to the High Court, the Crown contended that the original sentence cannot be manifestly excessive if it falls into the ‘worst case’ category for the offending, and that the VSCA erred in its approach to evaluating ‘current sentencing practices’ as applied by the sentencing judge.

The Court (Bell, Gageler, Keane, Nettle and Gordon JJ) unanimously allowed the Crown’s appeal, holding that the Court of Appeal erred in its approach to ‘current sentencing practices’ when it held that the differences between the sentencing judge’s conclusions and those in other cases warranted the conclusion that the sentencing judge imposed a manifestly excessive sentence.

The Court first held that the VSCA erred in describing the offence as falling within the ‘worst category’ of cases of intentionally causing serious injury. Given that the ‘worst category’ means an instance of an offence which warrants the imposition of the maximum penalty prescribed for the offence (see [18]), and that here the offending was agreed to be not so grave as to warrant the maximum penalty, then the offending cannot be described as being within the ‘worst category’ (at [19]). Instead, the sentencing judge is bound to consider where the particular facts of the offence and the offender lie on a ‘spectrum’ from least serious to the worst category (at [19]). The VSCA appropriately approach this question by finding a ‘yardstick’ by examining cases of causing serious injury by fire, and from there establishing some broad view of the range of sentences that would ensure consistency in sentencing (at [22]). The VSCA erred, however, in the significance they attributed to sentences imposed in the cases examined when it concluded that despite the ‘latitude’ allowed for sentencing an offence at the ‘upper-end’ of the spectrum, there was too much disparity between the sentencing judge here and the current sentencing practices in the authorities (see at [23]). The Court agreed (at [24]) with the Crown’s submission that:

[T]he Court of Appeal’s reasoning in effect impermissibly treated the sentences imposed in the few cases mentioned as defining the sentencing range and, on that basis, concluded that, because the sentence imposed in this case exceeded the sentences imposed in all but one of the cases referred to, the sentence imposed in this case was beyond the range of available sentences.

Cases of intentionally causing serious injury are uncommon, and the few cases examined could not support a sentencing ‘pattern’: ‘At best [the earlier cases] were representative of particular aspects of the spectrum of seriousness’ (at [25]) and were not comparable here (see the discussion of these cases at [26]–[31]). The Court also held that the VSCA erred in its approach to comparing injuries in earlier cases and the present case, specifically in its conclusion that the present sentence ‘unjustifiably disparate’ from those earlier cases (see [32]–[36]). Finally, the Court also held that the Court of Appeal erred in holding that the sentences imposed for the summary offences were manifestly excessive (see at [38]ff).

The Court rejected, however, the Crown’s contentions that the VSCA substituted its own views for the sentencing judge’s findings in dealing with the questions of whether the principal offence was unpremeditated or not, the extent of the respondent’s criminal record, and the respondent’s rehabilitation prospects. The Court held that no substitution was actually apparent: read in context, the VSCA intended to reiterate the sentencing judge’s findings, rather than contradict them (see at [37]).

Consequently, the Court set aside the orders of the Court of Appeal, with the effect of reinstating the original sentence of 15 years imprisonment with a non-parole period of 11 years.

High Court Judgment [2016] HCA 48 7 December 2016
Result Appeal allowed
High Court Documents Kilic
Full Court Hearing [2016] HCATrans 240 13 October 2016
Special Leave Hearing [2016] HCATrans 169 28 July 2016
Appeal from VSCA [2015] VSCA 331 8 December 2015
Sentencing Judgment, VCC
[2015] VCC 392 30 March 2015
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

One thought on “The Queen v Kilic

  1. Excellent.

    Frankly, if the Court hadn’t reached that decision, legislative change would have been needed. Hopefully this changes the pattern of appellate courts being to eager to find sentences to be manifestly excessive because they exceed overly lenient past cases. The idea that a sentence in a case this bad could be manifestly excessive when it is three quarters of the maximum allowable was completely out of touch with community expectations, and I’m glad the HCA has dropped the hammer on the approach of treating consistency with past (overly lenient) sentences as the most significant factor.

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