KC v R

Case [2009] NSWCCA 110 17 April 2009

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New South Wales
Court of Criminal Appeal

CITATION: KC v R [2009] NSWCCA 110

HEARING DATE(S): 8 April 2009

JUDGMENT DATE:
17 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 3

DECISION: 1 Grant leave to appeal.
2 Allow the appeal (in part).
3 Quash the sentence imposed in respect of count 3.
4 In substitution therefore sentence the applicant to a non-parole period of two years to commence on 26 June 2008 and to expire on 25 June 2010 with a total term of 3 years imprisonment to expire on 25 June 2011. I find special circumstances because of the accumulation of this sentence.
5 Confirm all the other sentences and confirm that the earliest date upon which the applicant is eligible for release on parole is 25 August 2011.

CATCHWORDS: Sentencing - offences of selling and using prohibited firearms - asserted errors in relation to assessment of objective seriousness where standard non-parole period applied - complaint about manner in which sentences structured - whether sentences manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

CATEGORY: Principal judgment

CASES CITED: Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146
Brown v R [2006] NSWCCA 249
Graham v R [2008] NSWCCA 309
McCullough v R [2009] NSWCCA 94
Natoli v R [2009] NSWCCA 36
R v AJP (2004) 150 A Crim R 575
R v Cromarty (2004) 144 A Crim R 515
R v Dunn [2003] NSWCCA 169
R v Gent (2005) 162 A Crim R 29
R v Howard [2004] NSWCCA 348
R v Morgan (1993) 70 A Crim R 368
R v Najem [2008] NSWCCA 32
R v Sukkar (2006) 172 A Crim R 151
R v Way (2004) 60 NSWLR 168
SGJ v R; KU v R [2008] NSWCCA 258
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: KC (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/10428

COUNSEL: N Mikhaiel (Applicant)
V Lydiard (Crown) (Respondent)

SOLICITORS: S O'Connor (Solicitor Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/10428

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 26 June 2008

2007/10428

GROVE J
HOWIE J
BUDDIN J

KC v R

Judgment

1 GROVE J: I agree with Buddin J.

2 HOWIE J: I agree with Buddin J.

3 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty to an indictment containing five counts. Count 1 alleged that he sold a prohibited pistol to a person not authorised to possess it. The maximum penalty for that offence is imprisonment for 20 years. Count 2 alleged that he sold a firearm part without being authorised to do so. The maximum penalty for that offence is imprisonment for 10 years. Count 3 alleged that he possessed a prohibited pistol…

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 KC v R

Details

AGLC: KC v R [2009] NSWCCA 110
Case: [2009] NSWCCA 110
Decision Date: 17 April 2009

CaseChat Overview and Summary

The case of KC v R involved a dispute over the sentencing of an individual who had been convicted of selling and using prohibited firearms. The appeal was heard by the High Court of Australia, which was asked to review the trial judge's assessment of the objective seriousness of the offences and the structure of the resulting sentences. The appellant argued that the trial judge had made errors in the assessment of objective seriousness, leading to the application of a standard non-parole period, and that the manner in which the sentences were structured was inappropriate. The central issue before the Court was whether the sentences imposed by the trial judge were manifestly excessive.

The Court considered the arguments presented by the appellant and examined the principles of sentencing as they apply to serious firearms offences. It assessed whether the trial judge had correctly applied the principles of sentencing in this context and whether the sentences imposed were proportionate to the gravity of the offences. The Court noted that the appellant had not challenged the trial judge's assessment of the objective seriousness of the offences themselves, but rather the manner in which this assessment was applied to determine the non-parole period. The Court also considered the structure of the sentences, which combined consecutive terms for the different offences, and whether this was appropriate in the circumstances.

After reviewing the evidence and the arguments, the Court concluded that the trial judge had not erred in assessing the objective seriousness of the offences or in determining the non-parole period. The Court found that the sentences were proportionate to the gravity of the offences and were not manifestly excessive. It also found that the structure of the sentences was appropriate and did not amount to an error of law. The appeal was therefore dismissed, and the original sentences were upheld.

No additional orders were made by the Court beyond the dismissal of the appeal. The appellant's sentences for the offences of selling and using prohibited firearms remained in place as originally determined by the trial judge.

Orders