Kalache v R

Case [2011] NSWCCA 210


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kalache v R [2011] NSWCCA 210
Hearing dates:22 July 2011
Decision date: 14 September 2011
Before: Allsop P at 1; Simpson J at 9; Buddin J at 28
Decision:

1 Grant leave to appeal.

2 Allow the appeals.

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
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Sentencing Act 1989 (NSW)
Cases Cited: Briggs v R [2010] NSWCCA 250
Buadromo v R [2007] NSWCCA 43
Caristo v R [2011] NSWCCA 7
Diesing v R [2007] NSWCCA 326
Dunn v R [2007] NSWCCA 312
Fina'i v R [2006] NSWCCA 134
Flynn v R [2010] NSWCCA 171
GAC v The Queen
IS v R [2011] NSWCCA 142
Johnson v The Queen (2004) 78 ALJR 616
Khoury v R [2011] NSWCCA 118
Maglis v R [2010] NSWCCA 247
MAJW v R [2009] NSWCCA 255
Mill v The Queen [1988] HCA 70; 166 CLR
59
Musgrove v The Queen [2007] NSWCCA
21; (2007)167ACrimR 424
Pearce v The Queen [1998] HCA 57; 194
CLR 610
Perry v The Queen [2006] NSWCCA 351;
(2006) 166ACrim R 383
R v Attard [2004] NSWCCA 376
R v Clissold [2002] NSWCCA 356
R v Close (1993) 31 NSWLR 743
R v Henry [2004] NSWCCA 306
R v Ibrahim [2005] NSWCCA 43
R v Jammeh [2004] NSWCCA 327
R v Keen [2004] NSWCCA 86
R v LWP [2003] NSWCCA 215
R v Lyndon [2003] NSWCCA 152
R v Reicher [2003] NSWCCA 300
R v Simpson [2001] NSWCCA 534; (2001)

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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.

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