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Kentwell v R

Kentwell v R

Case [2013] NSWCCA 266 14 November 2013

Appeal

Sentencing

Miscarriage of Justice

Special Circumstances

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kentwell v Regina [2013] NSWCCA 266
Hearing dates: 18 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J at [3]
Decision:
1.The application for an extension of time is dismissed.

Catchwords:
CRIMINAL LAW - appeal - application to extend time in which to seek leave to appeal against sentence - asserted Muldrock error - principles to be applied in determining whether extension of time should be granted - where Muldrock error established - whether extension of time should be granted
CRIMINAL LAW - sentence - where applicant convicted of multiple counts of having sexual intercourse without the consent of the victim - where sentencing judge erred in extending additional term of imprisonment to reflect a finding of special circumstances rather than reducing the non-parole period - where sentencing judge erred in assessment of psychiatric evidence - where sentencing judge erred in imposing a fixed term of imprisonment for an offence for which a standard non-parole period was prescribed - whether offending mitigated by the fact that the applicant and victim were in a relationship - where offending took place in context of domestic violence - where no other sentence warranted in law and no miscarriage of justice - application for extension of time dismissed
Legislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Abdul v R [2013] NSWCCA 247
AM v R [2012] NSWCCA 203
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 204
Bellchambers v R [2011] NSWCCA 131
Collier v R [2012] NSWCCA 213
DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; (2010) 205 A Crim R 1
Hristovski v R [2010] NSWCCA 129
Mammone v R [2013] NSWCCA 95
Mansour v R; Hughes v R [2013] NSWCCA 35
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
NM v R (2012) NSWCCA 215
Norman v R [2012] NSWCCA 230
R v Dunn [2004] NSWCCA 346
R v Edigarov (2001) 125 A Crim R 551
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Hemsley [2004] NSWCCA 28
R v P [2004] NSWCCA 218
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Wright [1998] VSCA 84
SGJ v R; KU v R [2008] NSWCCA 258
Category: Principal judgment
Parties: Phillip Charles Kentwell - Applicant
Regina - Respondent
Representation: Counsel:
Ms J Manuell SC- Applicant
Ms J Girdham SC - Respondent
Solicitors:
Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File Number(s): 2008 / 8126-013
Publication restriction: Nil
Decision under appeal

Date of Decision:

2009-02-20 00:00:00

Before:

Johnstone DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.

JOHNSON J: I agree with Bellew J.

BELLEW J: On 15 September…

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 Kentwell v R

Details

AGLC: Kentwell v R [2013] NSWCCA 266
Case: [2013] NSWCCA 266
Decision Date: 14 November 2013

CaseChat Overview and Summary

In Kentwell v R, the appellant sought an extension of time to appeal against his sentence, which he claimed was affected by a Muldrock error. The appellant was convicted on multiple counts of having sexual intercourse without the consent of the victim, and the sentencing judge made several errors in the sentencing process. The High Court was asked to consider whether the identified errors warranted an extension of time for the appellant to seek leave to appeal against his sentence.

The central legal issue was whether the identified errors in sentencing warranted an extension of time for the appellant to seek leave to appeal against his sentence. The court had to determine whether the alleged Muldrock error was established and whether, if so, an extension of time should be granted. The court considered the principles to be applied in determining whether an extension of time should be granted, as well as the nature and impact of the alleged errors on the sentence.

The court found that the alleged Muldrock error was indeed established, as the sentencing judge had extended the additional term of imprisonment to reflect a finding of special circumstances rather than reducing the non-parole period. However, the court also found that the other errors made by the sentencing judge did not warrant an extension of time. The court held that, even if the sentence was wrong, the appellant's offending was not mitigated by the fact that he and the victim were in a relationship, and the offending took place in the context of domestic violence. The court concluded that no other sentence was warranted in law and no miscarriage of justice had occurred.

The court dismissed the application for an extension of time, and the appellant's appeal against his sentence was not allowed. The court held that the identified errors did not warrant an extension of time, and that the sentence imposed was appropriate in the circumstances.

Orders