KG v R - [2012] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: KG v R [2012] NSWCCA 10
Hearing dates: 6 February 2012
Decision date: 06 February 2012
Before: Basten JA at 1 and 39;
RS Hulme J at 28;
Schmidt J at 37
Decision:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal and set aside the sentence imposed by Colefax DCJ on 17 December 2010.
(3) Resentence the applicant -
(a) to a non-parole period of 18 months to date from 16 June 2010 and expire on 15 December 2011; and
(b) a balance of term of 12 months to date from 16 December 2011, expiring on 15 December 2012.
(4) Direct the release of the applicant to parole forthwith.
(5) Direct that the applicant's parole be subject to standard parole conditions, both general and in relation to supervised parole, a copy of which will be attached to the papers and provided to the applicant, and to the following additional conditions:
(a) to report to the Office of Probation and Parole at Orange within seven days of his release and
(b) comply with any reasonable directions given by the Probation and Parole Officer to attend counselling or to attend courses directed towards rehabilitation.

Catchwords:
CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - whether manifestly excessive

CRIMINAL LAW - appeal - sentencing - whether inappropriate reference to standard non-parole period - whether proper consideration given to principles in Children (Criminal Proceedings) Act 1987 (NSW), s 6
CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - parity between co-offenders
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A, 17, 19
Crimes Act 1900 (NSW), s 98
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A
Cases Cited: Green v The Queen; Quin v The Queen [2011] HCA 49
Muldrock v The Queen [2011] HCA 39
R v Koloamatangi [2011] NSWCCA 288
Category: Principal judgment
Parties: KG - Applicant
Regina - Respondent
Representation:
Counsel:

Mr M J Johnston - Applicant
Ms J A Girdham - Respondent
Solicitors:
Legal Aid NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent

File Number(s): CCA 2010/151430
Publication restriction: Non-publication order
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-12-17 00:00:00

Before:

Colefax DCJ

File Number(s):

DC 2010/151430

Judgment

BASTEN JA : The applicant is presently serving a sentence in a juvenile detention centre involving a non-parole period of two years and nine days. The sentence was imposed on 17 December 2010, but dates from the day of the applicant's arrest, namely, 16 June 2010. It will therefore expire on 24 June 2012; that is, in approximately four months time.

His balance of term is one year four months and six days. Sentences of such precise duration give a false impression of mathematical calculation; it would have been entirely appropriate to round down the odd days.

Why the matter has…

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 KG v R

Details

AGLC: KG v R [2012] NSWCCA 10
Case: [2012] NSWCCA 10
Decision Date: 06 February 2012

CaseChat Overview and Summary

The appeal against the sentence imposed by the Supreme Court of New South Wales was heard by the Court of Criminal Appeal. The appellant, KG, was convicted of assault with intent to rob while in company, with wounding. KG was sentenced to a term of imprisonment with a non-parole period of 12 years. The legal issues before the court were whether the sentence was manifestly excessive, whether the court had inappropriately referenced the standard non-parole period, and whether proper consideration was given to the principles in the Children (Criminal Proceedings) Act 1987 (NSW), section 6. Additionally, the court examined whether there was parity between the sentences of the co-offenders.

The court examined the circumstances of the offence and the sentencing principles applicable to the case. The appellant argued that the sentence was manifestly excessive, particularly in light of the non-parole period. The court considered the principles set out in the Children (Criminal Proceedings) Act 1987 (NSW), section 6, which required the court to consider the welfare of the child and the principle of proportionality. The court also considered whether the sentence was disproportionate to the offending and whether there was parity between the sentences of the co-offenders. The court found that the sentence was not manifestly excessive and that the trial judge had appropriately considered the relevant principles and circumstances of the case.

The Court of Criminal Appeal found that the sentence imposed by the Supreme Court was not manifestly excessive. The court found that the trial judge had appropriately considered the principles in the Children (Criminal Proceedings) Act 1987 (NSW), section 6, and that the sentence was proportionate to the offending. The court also found that there was parity between the sentences of the co-offenders. The appeal was dismissed.

The Court of Criminal Appeal did not alter the sentence imposed by the Supreme Court. The appellant's conviction and sentence remained unchanged.

Orders