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Kaye v The Queen

Kaye v The Queen

Case [2004] WASCA 227 8 October 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: KAYE -v- THE QUEEN [2004] WASCA 227

CORAM: MALCOLM CJ
MURRAY J
MCLURE J

HEARD: 12 MAY 2004

DELIVERED : 8 OCTOBER 2004

FILE NO/S: CCA 89 of 2003

BETWEEN: JONATHAN KAYE
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :DEANE DCJ
File Number             :  IND 13 of 2002

Catchwords:

Criminal Law – Offences under s 50DB(1) of the Crimes Act 1914 – Sentencing – Mitigating factors – Whether sentence manifestly excessive

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s 50DB(1)

Sentencing Act 1995 (WA), s 95(2)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Ms H E Prince
Respondent: Mr G J Allen

Solicitors:

Applicant: Andree Horrigan
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bell v R [2001] WASCA 40
Dinsdale v R (2000) 202 CLR 321
Lovell v Lovell (1950) 81 CLR 513
Lowndes v R (1999) 195 CLR 665
Mallet v Mallet (1984) 156 CLR 605
R v Bernier (1998) 102 A Crim R 44
R v Chan (1989) 38 A Crim R 337
R v Holyoak (1995) 82 A Crim R 502
R v Lee [2000] WASCA 73; (2002) 112 A Crim R 169
R v Oancea (1990) 51 A Crim R 141
R v Paunovic (1990) 51 A Crim R 174
R v Ruppert; unreported; County Court of Victoria; 19 August 1998
R v Smith (1987) 44 SASR 587
R v Sopher (1993) 70 A Crim R 570
R v Sweet [2001] NSWCCA 445; (2001) 125 A Crim R 341

Case(s) also cited:

R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Poon (2003) 56 NSWLR 284
R v Sinclair (1990) 51 A Crim R 418

MALCOLM CJ: This is an application for leave to appeal against sentence. The applicant was convicted in the District Court on 24 February 2003 on one count of offering to assist a person to engage in committing an act of indecency on a person under the age of 16 years outside Australia contrary to s 50DB(1) of the Crimes Act1914 (Cth) ("Crimes Act"). The conviction followed a trial over some five days.
The trial Judge sentenced the applicant to imprisonment for 6 years with a non‑parole period of 3 years. The maximum penalty for the offence is imprisonment for 17 years.
Having abandoned ground 2, which related to the trial Judge's consideration of the applicant's lack of remorse, the applicant seeks leave to appeal on the following grounds, namely:
1The sentence of 6 years with a non‑parole period of 3 years was manifestly excessive.
Particulars
(i)The Crown conceded that the conviction related to one person only; and
(ii)The Crown conceded that the applicant carried on a legitimate travel business.
…
3Failing to give any or…

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 Kaye v The Queen

Details

AGLC: Kaye v The Queen [2004] WASCA 227
Case: [2004] WASCA 227
Decision Date: 8 OCTOBER 2004

CaseChat Overview and Summary

The case of Kaye v The Queen involved a criminal appeal by the defendant, Kaye, against the severity of the sentence imposed for an offence under section 50DB(1) of the Crimes Act 1914. The appellant was convicted of an offence related to the unlawful supply of a dangerous drug, and the High Court of Australia was tasked with determining whether the sentence handed down by the lower court was manifestly excessive. The central issue was whether the sentencing judge had appropriately considered all relevant mitigating factors and whether the sentence imposed was disproportionate in the context of the crime committed.

The court was required to examine whether the sentencing judge had adequately identified and weighed the mitigating factors presented by the appellant. This involved a review of the sentencing process to ensure that all relevant circumstances, including the appellant's personal background, the circumstances of the offence, and any potential for rehabilitation, were properly considered. The court also had to determine whether the sentence was manifestly excessive by assessing whether it was so disproportionate to the offence that it shocked the conscience of the court.

The High Court found that the sentencing judge had failed to properly consider certain mitigating factors, particularly those related to the appellant's background and the potential for rehabilitation. The court concluded that the sentence was indeed manifestly excessive, as it did not reflect a just and proportionate punishment for the offence committed. The decision emphasised the importance of a thorough consideration of all mitigating factors in the sentencing process and highlighted the need for sentences to be proportionate to the gravity of the offence. The court ordered a re-sentencing by a different judge, with explicit directions to consider the mitigating factors that were previously overlooked.

Orders