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: Andrew Smith v R [2013] NSWCCA 209
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Category: Principal judgment Parties: Nitin Kapila (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
J Trevallion (Applicant)
V Garrity (Respondent)
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…
Continue reading Kapila v R
Sign in free to access the full text
- AGLC
- Kapila v R [2024] NSWCCA 48
- Case
- [2024] NSWCCA 48
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.