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Kember v The Queen

Kember v The Queen

Case [2020] NSWCCA 152 10 July 2020

Appeal

Sentencing

Intensive Correction Order

Principles of Parity in Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kember v R [2020] NSWCCA 152
Hearing dates: 3 June 2020
Date of orders: 10 July 2020
Decision date: 10 July 2020
Before: Simpson AJA at [1]
Bellew J at [2]
Wilson J [82]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Appeal – Sentence – Firearms offences – Knowingly take part in supply of a pistol to a person not authorised to possess such a firearm – Possess a prohibited weapon – Whether sentencing judge failed to properly consider an Intensive Correction Order as an alternative to full-time custody – Where sentencing judge took into account all relevant matters – No error established – Whether sentencing judge failed to apply the principles of parity in sentencing – Where sentencing judge properly took into account different degrees of criminality of the applicant and the co-offenders – No justifiable sense of grievance arising from sentences imposed upon co-offenders – No need to consider manifest excess – Appeal dismissed
CRIMINAL LAW – Practice and procedure – Consideration of the imposition of an Intensive Correction Order – Three step process to be applied in determining whether such an order is appropriate – Where sentencing judge took those steps and had regard to all relevant matters in considering how sentence should be served – No error established

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Blanch v R [2019] NSWCCA 304
Brown v R; Reid v R [2006] NSWCCA 144
Campbell v R [2018] NSWCCA 87
Chamon v R [2020] NSWCCA 112
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Fangaloka [2019] NSWCCA 173
Tatana v R [2006] NSWCCA 398
WM v R [2020] NSWCCA 96

Category: Principal judgment
Parties: Shane Alan Kember – Applicant
Regina – Respondent
Representation:
Counsel:
J L Glissan QC – Applicant
K L Ratcliffe – Crown
Solicitors:
Clowry & Associates Lawyers – Applicant
Solicitor for Public Prosecution (NSW) – Respondent

File Number(s): (2016/263947)
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 101

Date of Decision:

14 February 2020

Before:

His Honour Judge Haesler SC

Judgment

SIMPSON AJA: I agree with Bellew J.
BELLEW J:

INTRODUCTION

Shane Alan Kember (the applicant) pleaded guilty in the District Court of New South Wales to the following offences:

On 31 August 2016, at Kembla Grange in the State of New South Wales, knowingly took part in the supply of a pistol, namely a Ruger brand pistol, to a person not authorised to possess…

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 Kember v The Queen

Details

AGLC: Kember v The Queen [2020] NSWCCA 152
Case: [2020] NSWCCA 152
Decision Date: 10 July 2020

CaseChat Overview and Summary

The case of Kember v The Queen involved the appellant, Kember, who appealed against his sentence for firearms offences. Kember had been found guilty of knowingly participating in the supply of a pistol to a person not authorised to possess such a firearm, as well as possessing a prohibited weapon. The appeal was heard in the High Court of Australia. Kember argued that the sentencing judge had failed to properly consider an Intensive Correction Order (ICO) as an alternative to full-time custody and that the judge had not applied the principles of parity in sentencing when comparing his sentence to that of his co-offenders.

The court was required to determine whether the sentencing judge had erred in failing to consider an ICO as an alternative to full-time custody and whether the judge had properly applied the principles of parity in sentencing. The court examined the three-step process for considering an ICO, which involves assessing whether the order is suitable for the offender, whether it is appropriate for the offence, and whether it is suitable for the community. The court found that the sentencing judge had followed this process and had considered all relevant matters in determining the appropriate sentence. The court also found that the sentencing judge had properly taken into account the different degrees of criminality of the appellant and his co-offenders, and had not failed to apply the principles of parity in sentencing. The court concluded that there was no justifiable sense of grievance arising from the sentences imposed upon the co-offenders and that there was no need to consider whether the sentences were manifestly excessive.

The High Court dismissed the appeal, finding that the sentencing judge had not erred in considering the appropriate sentence for the appellant. The court held that the sentencing judge had taken into account all relevant matters and had properly applied the principles of sentencing, including the three-step process for considering an ICO. The court found that there was no need to consider the manifest excess of the sentences imposed upon the co-offenders, as there was no justifiable sense of grievance arising from those sentences. The appeal was therefore dismissed, and the original sentence stood.

Orders