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Kaiser v R

Kaiser v R

Case [2009] NSWCCA 130 29 April 2009

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New South Wales
Court of Criminal Appeal

CITATION: Kaiser v R [2009] NSWCCA 130

HEARING DATE(S): 17 March 2009

JUDGMENT DATE:
29 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 43; Howie J at 44

DECISION: Grant leave to appeal but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - manslaughter - appeal against sentence - whether sentencing judge erred in finding that the respective criminality of the applicant and of the co-offender were about the same - whether the applicant has a justifiable sense of grievance arising out of disparity in his sentence with that of the co-offender - whether the sentencing judge erred in finding that the applicant realised that the co-offender "might kill the deceased" - quantification of discount for plea of guilty - whether sentence is manifestly excessive - whether a less severe sentence is warranted

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: FDP v R [2008] NSWCCA 317
GAS v The Queen [2004] 217 CLR 198
Gerard [1991] 56 A Crim R 297
R v Bryant [1999] NSWCCA 181
R v Clifford [2005] NSWCCA 350
R v Diab [2003] NSWSC 978
R v Ellis (1986) 6 NSWLR 603
R v Forbes [2005] 160 A Crim R 1
R v Hales (unreported, NSWCCA, 2 July 1992)
R v Norman & Oliveri [2007] NSWSC 142
R v Oosterum [2004] NSWSC 532
R v Simpson [2001] 53 NSWLR 704
R v Tran [1999] NSWCCA 443
R v Waterman [2002] NSWSC 1236

PARTIES: Brian Andrew Kaiser (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/1251

COUNSEL: P Hamill SC (Applicant)
M Grogan (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/1251

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 29 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 1362

2007/1251

McCLELLAN CJ at CL
SIMPSON J
HOWIE J
WEDNESDAY, 29 APRIL 2009

KAISER, Brian v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to the manslaughter of Shandele Macey and was sentenced to a non-parole period of 8 years and 2 months with an additional term of 2 years and 9 months making a total of 10 years and 11 months imprisonment. The applicant seeks leave to appeal against his sentence. The maximum penalty is twenty-five years imprisonment. There is no standard non-parole period.

2 A co-offender, Jeremy Michael Hunt was sentenced for the same offence arising out of the same circumstances. He was sentenced to a non-parole period of 6 years and 9 months with an additional term of 2 years and 3 months making a total term of 9 years imprisonment.

3 The trial of the applicant and Hunt was originally listed to commence on 20 October 2007. It was on that date that the applicant indicated that he would plead guilty to manslaughter. The sentencing judge allowed a “modest” discount for the plea of guilty but did not otherwise specify…

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 Kaiser v R

Details

AGLC: Kaiser v The Queen [2009] NSWCCA 130
Case: [2009] NSWCCA 130
Decision Date: 29 April 2009

CaseChat Overview and Summary

The appellant, Kaiser, was convicted of manslaughter and appealed against his sentence. The High Court of Australia was asked to consider whether the sentencing judge had erred in determining that the criminality of Kaiser and his co-offender was about the same. The court also considered whether Kaiser had a justifiable sense of grievance due to the disparity in his sentence compared to his co-offender. Additionally, the court examined if the sentencing judge erred in finding that Kaiser realised his co-offender "might kill the deceased". The court also reviewed the quantification of the discount for the plea of guilty, whether the sentence was manifestly excessive, and if a less severe sentence was warranted.

The High Court found that the sentencing judge had not erred in his assessment of the criminality of both Kaiser and his co-offender. The court determined that Kaiser's sense of grievance due to the disparity in sentences was not justifiable, as the sentencing judge had considered all relevant factors. The court further concluded that the sentencing judge's finding that Kaiser realised the potential lethal intent of his co-offender was supported by the evidence presented. The court also determined that the discount for the plea of guilty was appropriately quantified, and the sentence was not manifestly excessive. Therefore, the High Court upheld the original sentence imposed on Kaiser.

The appeal was dismissed, and the sentence of imprisonment for manslaughter remained in place. The High Court found that the sentencing judge had correctly assessed the criminality of both Kaiser and his co-offender, and the disparity in their sentences was justified. The court upheld the sentencing judge's findings regarding the potential lethal intent of the co-offender, and the discount for the plea of guilty. The High Court did not find the sentence to be manifestly excessive and did not warrant a less severe sentence. Consequently, the original sentence imposed on Kaiser for manslaughter was maintained.

Orders