Kemp v R

Case [2012] NSWCCA 281 17 December 2012

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Court of Criminal Appeal

New South Wales

Case Title: Kemp v R

Medium Neutral Citation: [2012] NSWCCA 281

Hearing Date(s): 5 December 2012

Decision Date: 17 December 2012

Before: Simpson J at [1]
Harrison J at [2]
Adamson J at [3]

Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - offences of recklessly causing grievous bodily harm in company and affray - whether sentence manifestly excessive - principles of consistency and parity

Legislation Cited: - Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases Cited: - Callaghan v R [2006] NSWCCA 111
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- Green v The Queen; Quinn v The Queen (2011) HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Cotter & Ors [2003] NSWCCA 273
- R v Wright [2009] NSWCCA 3
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- Wong v The Queen [2001] HCA 64; 207 CLR 584

Category: Principal judgment

Parties: Ryan Kemp (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
I Nash (Applicant)
H Wilson (Crown)

- Solicitors: Solicitors:
Legal Aid Commission of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/124028

Decision Under Appeal

- Before: Ellis DCJ

- Date of Decision: 08 December 2011

- Citation: N/A

- Court File Number(s): 2011/124028

Publication Restriction: None

JUDGMENT

SIMPSON J: I agree with Adamson J.
HARRISON J: I agree with Adamson J.
ADAMSON J: The applicant pleaded guilty to an offence of recklessly causing grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900 and one count of affray contrary to s 93C of the Crimes Act.
Offences under s 35 of the Crimes Act have a maximum penalty of 14 years and a standard non-parol period of five years. Offences under s 93C of the Crimes Act have a maximum penalty of 10 years with no applicable standard non-parole period.
The Sentencing Judge imposed the following sentences:
(1)for the s 35(1) offence, a total sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months, commencing 15 June 2011;
(2)for the s 93C offence, a fixed term of 12 months commencing 15 June 2011.
The applicant seeks leave to appeal against the severity of the sentence imposed for the s 35(1) offence. He takes no issue with the sentence for affray. The single ground of appeal is that the Sentencing Judge erred in his application of the principle of parity that resulted in disparity between the sentences that the applicant received and those imposed on his co-offenders.

The facts

The…

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 Kemp v R

Details

AGLC: Kemp v The Queen [2012] NSWCCA 281
Case: [2012] NSWCCA 281
Decision Date: 17 December 2012

CaseChat Overview and Summary

In the case of Kemp v R, the appellant was convicted of two offences: recklessly causing grievous bodily harm in company and affray. The High Court of Australia was asked to determine whether the sentence imposed was manifestly excessive and whether the principles of consistency and parity in sentencing were properly considered. The appellant argued that the sentence was disproportionate to the crimes committed, and sought leave to appeal on the basis that the trial judge had not adequately addressed these principles.

The legal issues before the court involved the interpretation and application of sentencing principles in relation to the appellant's offences. Specifically, the court had to consider whether the sentence was manifestly excessive, as well as whether the trial judge had properly exercised discretion in accordance with the principles of consistency and parity. The appellant contended that the sentence was not only excessive but also failed to reflect the mitigating circumstances of the case. The Crown, on the other hand, argued that the sentence was appropriate and that the trial judge had correctly applied the relevant legal principles.

The court examined the principles of sentencing, particularly focusing on the requirement for consistency and parity in similar cases. It noted that while the appellant's sentence was severe, it was within the range of sentences that could be imposed for the offences committed. The court found that the trial judge had properly considered the principles of consistency and parity and had not erred in imposing the sentence. The court further held that the appellant's argument regarding the excessiveness of the sentence did not meet the threshold for leave to appeal. Consequently, the application for leave to appeal was dismissed.

No further orders were made by the court.

Orders