KB v The Queen - [2015] NSWCCA 220

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	KB v R
Medium Neutral Citation:	[2015] NSWCCA 220
Hearing Date(s):	13 July 2015
Date of Orders:	19 August 2015
Decision Date:	19 August 2015
Before:	Simpson JA at [1] Button J at [2] Fagan J at [3]
Decision:	(1) Extend time within which to apply for leave to appeal against sentence up to and including the date on which such application was filed. (2) Grant leave to appeal. (3) Allow the appeal. (4) The sentences imposed in the District Court on 27 September 2013 are quashed. (5) In lieu thereof the following sentences are imposed: (a) Count 2 – a non-parole period of 3 years commencing 7 August 2014 and expiring 6 August 2017 and a balance term of 1 year 6 months expiring 6 February 2019. (b) Count 4 – a non-parole period of 2 years commencing 7 November 2014 and expiring 6 November 2016 and a balance term of 1 year commencing 7 November 2016 and expiring 6 November 2017. (c) Count 5 – a non-parole period of 2 years commencing 7 February 2015 and expiring 6 February 2017 and a balance term of 1 year commencing 7 February 2017 and expiring 6 February 2018. (d) Count 7 – a non-parole period of 7 years 8 months commencing 7 May 2015 and expiring 6 January 2023 and a balance term of 3 years 4 months commencing 7 January 2023 and expiring at 6 May 2026. (6) The Appellant will be eligible to be released to supervised parole at the expiration of the non-parole period fixed for Count 7.
Catchwords:	CRIMINAL LAW – appeal against sentence – comparable sentence decisions – sentencing judge having regard to comparables subsequently reconsidered
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Ingham v R [2011] NSWCCA 88 Ingham v R [2014] NSWCCA 123 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Leslie [2013] NSWCCA 48 RJA v R [2008] NSWCCA 137 RJA v R [2014] NWCCA 89
Category:	Principal judgment
Parties:	KB (Appellant) Regina (Respondent)
Representation:	Counsel: D Barrow (Appellant) E Balodis (Respondent) Solicitors: SE O'Connor - Legal Aid NSW (Appellant) C Hyland - Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/203554 & 2010/315903
Publication Restriction:	Non-publication order prohibiting publication or other disclosure of information tending to reveal identity of, or otherwise concerning, any party to, or witness in proceedings before the Court, or any person who is related to or otherwise associated with any party to or witness in proceedings before the Court until further order.
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	27 September 2013
Before:	English DCJ
File Number(s):	2011/203554 & 2010/315903

JUDGMENT

SIMPSON JA: I agree with Fagan J.
BUTTON J: I agree with Fagan J.
FAGAN J: On 6 June 2013 the applicant for…

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 KB v The Queen

Details

AGLC: KB v The Queen [2015] NSWCCA 220
Case: [2015] NSWCCA 220
Decision Date: 19 August 2015

CaseChat Overview and Summary

KB was convicted of aggravated burglary and was sentenced to imprisonment by the County Court of Victoria. KB appealed to the Court of Appeal against the sentence imposed. The appeal focused on whether the sentencing judge appropriately considered comparable sentence decisions when determining the appropriate punishment. The Court of Appeal examined whether the sentencing judge had correctly identified and applied relevant precedents and principles in the context of the crime committed and the offender's circumstances.

The primary legal issue was whether the sentencing judge had failed to adequately consider comparable sentence decisions, particularly those that had been reconsidered after the sentencing hearing. This involved an analysis of whether the sentencing judge had overlooked or misunderstood certain precedents that would have impacted the final sentence imposed on KB. The Court of Appeal needed to determine if the failure to properly consider these cases constituted a significant error that warranted a revision of the sentence.

In reviewing the case, the Court of Appeal held that the sentencing judge had indeed erred in not properly considering certain reconsidered comparable sentence decisions. The court found that these decisions were pertinent and should have been given due weight in determining the appropriate penalty. Consequently, the Court of Appeal quashed the sentence and ordered a resentencing hearing. The court emphasised the importance of ensuring that sentencing judges have regard to all relevant and comparable cases, particularly those that have been reconsidered post-sentencing, to ensure fairness and consistency in the judicial process.

Orders