Legal Research
Cases
Kaderavek v R

Kaderavek v R

Case [2018] NSWCCA 92 11 May 2018

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Glynn Kaderavek v R [2018] NSWCCA 92
Hearing dates: 28 March 2018
Date of orders: 11 May 2018
Decision date: 11 May 2018
Before: Beazley P at [1];
Schmidt J at [2];
Hamill J at [3]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal allowed.
(3) The aggregate sentence imposed in the District Court is quashed and in lieu thereof:
(4) The applicant is sentenced to an aggregate sentence of 7 years commencing 7 April 2015 and expiring 6 April 2022 with a non-parole period of 4 years and 6 months commencing 7 April 2015 and expiring on 6 October 2019.
(5) The applicant will be eligible for release to parole at the conclusion of the non-parole period.

Catchwords: CRIME – application for leave to appeal against sentence – domestic violence – repeated serious offending against same victim – unusual chronology – pre-existing sentence relating to offences committed after the subject offences – correct commencement date – where sentence summary apt to mislead sentencing Judge – incorrect commencement date – requirement that sentence takes into account time spent in custody for present offence – pre-existing sentence less than three years – statutory parole period – whether accumulation nullified finding of special circumstances – applicant re-sentenced
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33, 44, 47 and 53A
Cases Cited: Cherry v R [2017] NSWCCA 150
DPP v Darcy-Shillingsworth [2017] NSWCCA 224
GP v R [2017] NSWCCA 200
Greenyer v R [2016] NSWCCA 272
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R [2016] NSWCCA 255
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Johnson [2015] NSWSC 31
R v McHugh (1985) 1 NSWLR 588
R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Wiggins [2010] NSWCCA 30
Category: Principal judgment
Parties: Glynn Kaderavek (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Quilter (Appellant)
H Roberts (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/360592
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 January 2017

Before:

Buscombe DCJ

File Number(s):

2014/00360592

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Hamill J. I agree with his Honour’s reasons and proposed orders.
SCHMIDT J: I also agree with Hamill J’s reasons and orders.
HAMILL J: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Buscombe in the District Court on 25 January 2017. He was sentenced on two indictments containing three charges. There were two offences of violence committed upon his domestic partner (Sarah Lennan) and one offence arising from his attempt to cover up those offences. The first count was an allegation of assaulting Ms Lennan…

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 Kaderavek v R

Details

AGLC: Kaderavek v R [2018] NSWCCA 92
Case: [2018] NSWCCA 92
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the High Court of Australia, Kaderavek appealed against his sentence for domestic violence offences. The applicant had been found guilty of multiple counts of assault and threatening behaviour against his partner over a prolonged period. The central issue was whether the original sentence, which seemed to misstate the commencement date for the cumulative term, was correctly imposed. The court had to determine if the sentence should account for the time the applicant had already spent in custody prior to the commencement of the current sentence. Furthermore, the court examined whether the statutory parole period of the pre-existing sentence nullified the finding of special circumstances.

The court considered the legal principles surrounding the commencement date for cumulative sentences and the requirement that sentences take into account time spent on remand. It was noted that the original sentence summary was misleading regarding the commencement date. The court also addressed the interplay between the statutory parole period of a pre-existing sentence and the finding of special circumstances. It was determined that the pre-existing sentence, being less than three years, did not automatically negate the special circumstances identified in the current sentencing process. Consequently, the court found that the applicant should be re-sentenced to ensure the sentence accurately reflected the legal requirements and principles.

The High Court allowed the appeal and remitted the matter to the Court of Appeal for re-sentencing. The court clarified that the sentence must correctly identify the commencement date and adequately account for time spent in custody. The court emphasised the importance of ensuring that the sentence summary is accurate and does not mislead the sentencing judge. The decision underscored the need for sentences to properly reflect the legal requirements and the principles of sentencing in cases of domestic violence.

Orders