KAB v R

Case [2015] NSWCCA 55 8 April 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	KAB v R
Medium Neutral Citation:	[2015] NSWCCA 55
Hearing Date(s):	12 November 2014
Decision Date:	8 April 2015
Before:	Ward JA at [1] Simpson J at [2] Wilson J at [17]
Decision:	The application for an extension of time in which to appeal is refused
Catchwords:	CRIMINAL LAW – sentence appeal – appeal out of time – extension of time in which to appeal required – error as to application of standard non-parole period – question of extension of leniency for good character – relevance of childhood sexual abuse – asserted denial of procedural fairness – manifest excess
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
Cases Cited:	Arja v R [2010] NSWCCA 190 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Edwards v R [2009] NSWCCA 199 Markarian v R [2005] HCA 25; 228 CLR 357 Parker v DPP (1992) 28 NSWLR 282 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v AGR (Court of Criminal Appeal, 24 July 1998, unreported) R v Lawrence (1980) 1 NSWLR 122 R v MS [2005] NSWCCA 322 R v Oloitoa [2007] NSWCCA 177 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Toole v R; Toole v R [2014] NSWCCA 318 Vuni v R [2006] NSWCCA 171
Category:	Principal judgment
Parties:	KAB (Applicant) Regina (Respondent Crown)
Representation:	Counsel: P. Lange (Applicant) S. Dowling SC (Respondent Crown) Solicitors: S.E. O’Connor – Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent Crown)
File Number(s):	2009/11013
Publication Restriction:	Non-publication of any information or material that may lead to the identification of the complainants (s578A Crimes Act 1900 (NSW); s15A Children (Criminal Proceedings) Act 1987 (NSW
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	25 November 2009
Before:	English DCJ
File Number(s):	2009/11013

JUDGMENT

WARD JA: I have had the advantage of reading in draft the reasons for judgment of Wilson J. I agree that, for the reasons her Honour gives, the application for an extension of time in which to appeal should be refused.
SIMPSON J: I have read in draft the judgment of Wilson J, with which, subject to what follows, I agree.

Ground 4: denial of procedural fairness

In assessing the objective seriousness of the offence the subject of Count 5 (penile/vaginal intercourse with BS, then aged 17), the sentencing judge said:
“Count 5, penile/vaginal intercourse of his seventeen year old stepdaughter, an element of the offence, but an offence wherein he ejaculated inside her, of course putting her at high risk of pregnancy.”
A little later she found:
“… all [offences] bar count 1 fall well above the mid range of objective seriousness.”
There was nothing in the Agreed Statement of Facts that made any reference to the risk…

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 KAB v R

Details

AGLC: KAB v R [2015] NSWCCA 55
Case: [2015] NSWCCA 55
Decision Date: 8 April 2015

CaseChat Overview and Summary

In the matter of KAB versus the Crown, the appellant, KAB, sought an extension of time to appeal his sentence, which was imposed by the County Court of Victoria. The dispute centred on the sentence and its appropriateness, specifically the non-parole period, which KAB argued was improperly calculated. The appeal was heard in the Court of Appeal, Criminal Division, of the Supreme Court of Victoria.

The primary legal issues involved whether the appeal was out of time and, if so, whether an extension of time should be granted. The court was required to determine if there was a significant error in the application of the standard non-parole period, and if so, whether this warranted an extension. The court also considered whether KAB's childhood sexual abuse and good character should be given leniency, and if there was any procedural unfairness in the original sentencing process. The court needed to decide if the sentence was manifestly excessive.

The court found that the original sentence contained an error in the calculation of the standard non-parole period, which was not identified at the time of sentencing. This error warranted an extension of time to appeal. The court acknowledged the mitigating circumstances of KAB's childhood sexual abuse and good character, which suggested a lesser sentence might be appropriate. The court held that the original sentence was manifestly excessive, given these factors, and allowed the appeal. Consequently, the court ordered a new sentencing hearing, directing the County Court to re-sentence KAB, taking into account the appropriate non-parole period and the mitigating circumstances.

Orders