3 Quash the sentences imposed in the District Court and in substitution therefor impose the following sentences:
(a) for the offence of perverting the course of justice, sentence the applicant to a fixed term of 9 months to commence on 25 August 2010 and to expire on 25 May 2011;
(b) for each of the three offences of money laundering, sentence the applicant to concurrent fixed terms of 2 years to commence on 25 February 2011 and to expire on 25 February 2013;
(c) for the offence of conspiracy to defraud, sentence the applicant to a non-parole period of 1 year and 8 months to commence on 25 October 2011 and to expire on 24 June 2013 with a total term of 2 years and 10 months to expire on 24 August 2014.
4 The applicant will be eligible for release on parole on 24 June 2013
Catchwords:
CRIMINAL LAW - application for leave to appeal against sentence - sentencing for multiple offences - no complaint made about individual sentences - successive sentencing procedures - combined effect of sentences imposed - disproportionate non-parole period representing 93 percent of overall sentence - failure to advert to question of special circumstances in process of imposing cumulative sentences - failure to consider impact of sentences upon custodial circumstances - limited evidence concerning prospects of rehabilitation - offences reveal propensity for dishonesty - interests of the community - leave granted - sentences quashed - applicant re-sentenced
[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.
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Details
AGLC
Kalache v R [2011] NSWCCA 210
Case
[2011] NSWCCA 210
Decision Date
CaseChat Overview and Summary
The applicant, Kalache, sought leave to appeal against his sentence for multiple offences. The appeal was heard in the High Court of Australia. Kalache had been convicted of various offences including fraud and breach of bail conditions. The central issue before the court was whether the sentences imposed by the lower courts were appropriate and whether the cumulative effect of these sentences was proportionate to the crimes committed. Additionally, the court had to consider whether the trial judge had failed to appropriately address special circumstances and the impact of the sentences on the applicant's custodial circumstances.
The court examined whether the cumulative sentences imposed by the trial judge were proportionate and if the process of successive sentencing had adequately considered the combined effect of these sentences. It was noted that the non-parole period of Kalache's sentence represented 93 percent of the overall sentence, which raised concerns about proportionality. The court also highlighted the trial judge's failure to advert to the question of special circumstances in the process of imposing cumulative sentences and to consider the impact of these sentences on Kalache's custodial circumstances. The limited evidence regarding the applicant's prospects of rehabilitation and the nature of the offences, which revealed a propensity for dishonesty, were additional factors the court weighed in its decision.
The court concluded that the sentences imposed were not proportionate and that the trial judge had failed to appropriately consider the special circumstances and the impact of the cumulative sentences on the applicant. As a result, the High Court granted leave to appeal, quashed the sentences, and ordered that Kalache be re-sentenced. The court's decision underscores the importance of ensuring that sentences are proportionate, take into account special circumstances, and adequately consider the implications for the custodial circumstances of the offender.