Kane v R

Case [2021] NSWCCA 250 27 October 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kane v R [2021] NSWCCA 250
Hearing dates: 11 August 2021
Date of orders: 27 October 2021
Decision date: 27 October 2021
Before: Leeming JA and R A Hulme J at [1]
Campbell J at [17]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal against sentence – break, enter and steal offences – manifest excess – no specific error alleged – where offending occurred almost immediately after release to parole – subjective circumstances – sufficiency of backdating – within sentencing discretion

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW) s 158
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33, 53A, 54B
Crimes Act 1900 (NSW) ss 112, 113, 154A

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Fernando (1992) 76 A Crim R 58
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2016] NSWCCA 218
Leach v The Queen [2008] NSWCCA 73; 183 A Crim R 1
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R [2014] NSWCCA 212
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Texts Cited:
Nil

Category: Principal judgment
Parties: Mark Kane (Applicant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Applicant)
C Dodds (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/00209816
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

29 April 2020

Before:

O’Rourke SC DCJ

File Number(s):

2019/00209816

Judgment

LEEMING JA and R A HULME J: The background is set out in the judgment of Campbell J, which we have had the advantage of reading in draft, and which enables us to explain why we would dismiss this appeal succinctly.
The application is for leave to appeal from a sentence of 4 years imprisonment, with a non-parole period of 2 years and 8 months. The sentence was an aggregate sentence, imposed following the applicant’s pleas of guilty to one count of aggravated break and enter with intent to steal contrary to s 113(2) of the Crimes Act 1900 (NSW) and two counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act. The maximum penalties for the offences were 14 years imprisonment for the first offence, and 20 years imprisonment for each of the second and third offences. The latter attracted a standard non-parole period of 5 years.
In…

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 Kane v R

Details

AGLC: Kane v R [2021] NSWCCA 250
Case: [2021] NSWCCA 250
Decision Date: 27 October 2021

CaseChat Overview and Summary

The appeal by the defendant, Kane, against his sentence for break, enter, and steal offences was heard in the court. The defendant's counsel argued that the sentence was manifestly excessive, though no specific errors in the sentencing process were identified. The defendant's offending occurred almost immediately after his release on parole, a fact that the court considered in its reasoning. The legal issues before the court involved whether the sentence was within the bounds of the court's discretion and whether the backdating of the sentence was appropriate under the circumstances.

The court examined the nature of the defendant's offending and his recent release from parole. It noted that the defendant's subjective circumstances, including his recent release, were relevant to the sentencing process. The court held that the sentence was not manifestly excessive and was within the sentencing discretion of the trial judge. The backdating of the sentence was also deemed appropriate, as it reflected the court's view that the sentence was proportionate to the offending. The court concluded that the appeal against sentence was without merit.

The court's reasoning was based on the principle that the sentencing judge is best placed to assess the appropriate sentence in light of all the circumstances. The court found that the sentence imposed was appropriate and that the backdating did not undermine the fairness of the process. The appeal was dismissed, and the original sentence was upheld. The court's decision affirmed the importance of considering the defendant's circumstances, including recent parole, in sentencing for similar offences.

Orders