Kaminic v R

Case [2014] NSWCCA 116


Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Kaminic v R [2014] NSWCCA 116
Citation:
Hearing dates: 3/06/2014
Decision date: 30 June 2014
Before: Ward JA at [1];
Fullerton J at [14];
Hamill J at [73]
Decision: 1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal against sentence -
accessory after the fact to murder - whether
sentencing judge erred in failing to backdate the
sentence to take into account the applicant's pre-
sentence custody - whether sentencing judge
erred in assessment of objective seriousness -
whether sentence is manifestly excessive - parity
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Carroll v The Queen [2009] HCA 13; 83 ALJR 579
De Simoni v The Queen (1981) 147 CLR 383
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011]
HCA 49; 244 CLR 462
Hili and Jones v The Queen [2010] HCA 45; 242
CLR 520
House v R [1936] HCA 40; 55 CLR 499
Mulato v R [2006] NSWCCA 282
Postlewaight v R [2011] NSWCCA 279
R v Almirol (No 2) [2007] NSWSC 323
R v Bhullar [2012] NSWSC 93
R v Cartwright (1989) 17 NSWLR 243
R v Cowen [2008] NSWSC 104
R v Deeble (Court of Criminal Appeal (NSW) 19
September 1991, unrep)
R v Dileski [2002] NSWCCA 345; 132 A Crim R 345
R v Ditfort [1999] NSWCCA 442
R v Elsworth [2000] NSWSC 582
R v English [2000] NSWCCA 245
R v Farroukh (Court of Criminal Appeal (NSW) 29
March 1996, unrep)
R v Faulkner [2000] NSWSC 944
R v Ferrett [2010] NSWSC 546
R v Galea [2000] NSWSC 301
R v Gersteling [2004] NSWSC 502
R v Jin [2011] NSWSC 169
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Lattouf (Court of Criminal Appeal (NSW) 12
December 1996, unrep)
R v Leung [2000] NSWSC 824
R v Mirad [2004] NSWSC 701
R v Munday (1981) 2 NSWLR 117
R v Phan [2001] NSWSC 1069; 126 A Crim R 257
R v Quach [2002] NSWSC 1205
R v RAF [1999] NSWSC 615
R v Rodriguez [2012] NSWSC 663
R v Smith [2013] NSWSC 796
R v Szkudelski [1999] NSWSC 178
R v Ward [2004] NSWSC 420
R v Waters [1999] NSWSC 893
R v Willard [2001] NSWCCA 6; 120 A Crim R 450
Urriola v R [2012] NSWCCA 95
Warren v Coombs (1979) 142 CLR 531
Wiggins v R [2010] NSWCCA 30
Ying v Song [2009] NSWSC 1344
Texts Cited: M Harding & I Malkin, "The High Court of
Australia's Obiter Dicta and Decision-Making in
Lower Court" (2012) 34(2) Sydney Law Review 239
The Hon K Mason, "The distinctiveness and
independence of intermediate courts of appeal"
(2012) 86 ALJ 308, 317ff
Category: Principal judgment
Parties: Senad…

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Kaminic v R [2014] NSWCCA 116
Case
[2014] NSWCCA 116
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant, Kaminic, against his sentence for being an accessory after the fact to murder. The applicant argued that the sentencing judge had erred in two primary respects. Firstly, the sentencing judge had failed to backdate the sentence to account for the applicant's pre-sentence custody. Secondly, the applicant argued that the sentencing judge had erred in the assessment of the objective seriousness of the offence, which led to a sentence that was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentencing judge had erred in failing to backdate the sentence and whether the assessment of the objective seriousness of the offence was flawed, resulting in a manifestly excessive sentence. The applicant further contended that the sentence was disproportionate when compared to sentences imposed on other offenders in similar circumstances, thus raising issues of parity in sentencing.

The court, in its judgment, addressed the first issue by examining the sentencing principles and the discretion of the sentencing judge in backdating sentences. It was found that the sentencing judge did not err in not backdating the sentence, as the law did not require such action in this context. Regarding the second issue, the court meticulously reviewed the objective seriousness of the offence and the sentence imposed. The court concluded that the sentencing judge had appropriately assessed the seriousness of the offence and that the sentence was not manifestly excessive. The court also considered the principle of parity in sentencing and found that the sentence was proportionate to the crime committed and in line with sentences imposed in similar cases.

The High Court ultimately dismissed the appeal, affirming the sentence imposed by the sentencing judge. The court's decision underscored the importance of judicial discretion in sentencing and the need to ensure that sentences reflect the gravity of the offence while also considering the individual circumstances of the offender.

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