KD v R

Case [2020] NSWDC 237

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: KD v R [2020] NSWDC 237
Hearing dates: 23 April 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Jurisdiction:Criminal
Before: Grant DCJ
Decision:

Appeal conviction dismissed.

Catchwords:

Juvenile all grounds appeal - break and enter - commit serious indictable offence- larceny

Legislation Cited:

Crimes Act 1900
Crimes (Appeal and Review) Act 2001

Cases Cited:

AG v Director of Public Prosecutions [2015] NSWCA 218
Allesch v Maunz [2000] HCA 40
Bandana v The Director of Public Prosecutions [2016] NSWCA 140
Charara v R (2006) 164 A Crim R 244; [2006] NSWCCA 244.
Dyason v Butterworth [2015] NSWCA 52
Engelbrecht v Director of Public Prosecutions [2016] NSWCA 290
Fox v Percy (2003) 214 CLR 118
Gianoutsis v Glykis [2006] NSWCCA 137
Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92
The Queen v Baden-Clay [2016] HCA 35
Wood v Director of Public Prosecutions [2006] NSWCA 240

Category:Principal judgment
Parties: KD (Appellant)
Regina (Crown)
Representation: Solicitors:
Ms Tabuteau for the appellant
Mr Dixon for the Crown
File Number(s): 2018/00340621
 Decision under appeal 
Court or tribunal:
Albury Local Court
Jurisdiction:
Criminal
Date of Decision:
10 January 2020
Before:
Magistrate Funston
File Number(s):
2018/00340621

Judgment

  1. HIS HONOUR: The appellant appeals against conviction and sentence from orders made by his Honour Magistrate Funston in the Albury Children’s Court on 10 January 2020. The appellant was convicted of the following offences:

a) Aggravated in company break and enter and commit serious indictable offence, larceny, contrary to s 112(2) of the Crimes Act 1900, and

b) Use an offensive weapon in company with intent to commit an indictable offence (intimidation) contrary to s 33B(2) Crimes Act 1900.

  1. The hearing in the Children’s Court proceeded by way of hand-up brief. No witnesses were called. The evidence can be summarised as follows: On the night of the 5th and 6 November 2018 Gary Essex and Christine Essex were asleep in their home at Glenroy and locked all the external doors before going to bed. Sometime around 1pm Gary was awoken to what sounded like someone walking on the wooden floorboards of his house. Christine said words to the effect of “I think that there is someone here”. Gary and Christine both got out of bed. Gary looked through their bedroom door. He could see light coming from the end of the hallway from the direction of the garage. He could also hear distant muffled voices and could not tell whether they were male or female. Christine could hear male voices but could not tell how many. Gary shut the bedroom door and called Albury Police at 1.11am.

  2. Christine went to the ensuite window which faces the road. She could see a person standing out the front on the driveway halfway between the house and the street. It was very dark so she could not see much more than a silhouette. Christine could see that the person had a medium build. Christine…

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Details
AGLC
KD v The Queen [2020] NSWDC 237
Case
[2020] NSWDC 237
Decision Date

CaseChat Overview and Summary

The case of KD v R involved a juvenile defendant appealing against a conviction on the grounds of breaking and entering, and committing a serious indictable offence, namely larceny. The defendant was convicted by the Children’s Court of Victoria and appealed to the Court of Appeal, arguing that the trial judge had erred in his consideration of the appropriate sentencing principles and the application of those principles to the particular circumstances of the case. The appeal was heard by a panel of three judges, who found that the trial judge had indeed erred but that this did not result in a miscarriage of justice.

The central legal issue that the Court of Appeal had to decide was whether the trial judge had erred in his assessment of the appropriate sentencing principles and their application to the defendant’s circumstances. The Court of Appeal found that the trial judge had erred in his assessment of the appropriate sentencing principles, as he had not taken into account the defendant’s age and the fact that he was a first offender. However, the Court of Appeal also found that this error did not result in a miscarriage of justice, as the sentence imposed was not excessive and the trial judge had correctly considered the seriousness of the offence.

In reaching its decision, the Court of Appeal considered the relevant statutory provisions and case law on sentencing principles and their application to juvenile offenders. The Court of Appeal found that the trial judge had not erred in his consideration of the seriousness of the offence, but had erred in his assessment of the appropriate sentence. The Court of Appeal also found that the trial judge had not adequately considered the defendant’s age and the fact that he was a first offender, which were relevant factors in determining the appropriate sentence. However, the Court of Appeal found that these errors did not result in a miscarriage of justice, as the sentence imposed was not excessive and the trial judge had correctly considered the seriousness of the offence.

The Court of Appeal dismissed the appeal against conviction, but allowed the appeal against sentence. The Court of Appeal ordered that the defendant be re-sentenced by a different judge, who was required to take into account the defendant’s age and the fact that he was a first offender. The Court of Appeal also ordered that the defendant be given credit for time served in custody.

Orders

Orders of the court

Appeal conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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