Legal Research
Cases
Kapila v R

Kapila v R

Case [2024] NSWCCA 48 5 April 2024

Appeal

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kapila v R [2024] NSWCCA 48
Hearing dates: 29 November 2023
Date of orders: 05 April 2024
Decision date: 05 April 2024
Before: Harrison CJ at CL at [1]
Button J at [2]
Weinstein J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of a count to which it did not attach – facts and circumstances of a Form 1 offence may be considered to provide context – no demonstrable error – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 93T, 192E(1)(b), 193C(1), 344A(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2), 32(1), 33(1)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Ahmad v R [2022] NSWCCA 144
Andrew Smith v R [2013] NSWCCA 209
Dang v R [2014] NSWCCA 47
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Lonsdale v R [2020] NSWCCA 267
Mulato v R [2006] NSWCCA 282
Ragg v R [2022] NSWCCA 150
RL v R [2018] NSWCCA 274
RO v R [2019] NSWCCA 183
Singh v R [2021] NSWCCA 96

Category: Principal judgment
Parties: Nitin Kapila (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Trevallion (Applicant)
V Garrity (Respondent)
Solicitors:
Blaxland Criminal Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/224573
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 February 2023

Before:

O’Brien AM DCJ

File Number(s):

2019/224573

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty in the District Court to an offence of deal with property to the value of $100,000 or more where there are reasonable grounds to suspect that the property was the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW) (count 1) and an offence of attempt to dishonestly obtain a financial advantage by deception contrary to ss 192E(1)(b) and 344A(1) of the Crimes Act (count 2). A further offence of knowingly participate in a criminal group contrary to s 93T of the Crimes Act was taken into account on a Form 1 at the applicant’s request, which attached to count 2.

After applying a 5% discount for his pleas of guilty, O’Brien AM DCJ sentenced the applicant to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months. His Honour specified indicative sentences of 22 months for count 1 and, taking into account the form 1 offence, 4 years for count 2.

The applicant appealed on a single ground that the sentencing judge erred in the manner in which the further offence on the Form 1 was taken into account. In particular, the applicant argued that the sentencing judge engaged in ‘double counting’ of…

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 Kapila v R

Details

AGLC: Kapila v R [2024] NSWCCA 48
Case: [2024] NSWCCA 48
Decision Date: 05 April 2024

CaseChat Overview and Summary

The case involved Kapila appealing against a sentence imposed by the court. The appeal centred on whether the sentencing judge made an error by considering a Form 1 offence when assessing the objective seriousness of a count to which it did not directly attach. The matter was heard in the court of appeal.

The court needed to determine whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of another count. The court also had to decide if the facts and circumstances of the Form 1 offence could be considered to provide context without leading to double counting. The appeal hinged on whether the judge's approach to sentencing was flawed and if the outcome was unjust.

The court found that the sentencing judge did not commit any demonstrable error by considering the facts and circumstances of the Form 1 offence to provide context. The court held that there was no double counting and that the sentencing process was fair and just. The appeal was dismissed as the court found no basis to interfere with the original sentence.

No specific orders were made beyond dismissing the appeal. The original sentence stood affirmed.

Orders