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 dismissedLegislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases 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 258Category: Principal judgment Parties: Phillip Charles Kentwell - Applicant
Regina - RespondentRepresentation: 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…
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- Kentwell v R [2013] NSWCCA 266
- Case
- [2013] NSWCCA 266
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: HOEBEN CJ
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