Kidd v The Queen - [2009] NSWCCA 229

New South Wales
Court of Criminal Appeal

CITATION: Kidd v R [2009] NSWCCA 229

HEARING DATE(S): 19 August 2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Macfarlan JA at 1; Grove J at 2; Hoeben J at 56

DECISION: Extension of time granted.
Appeal dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Delay as a result of interstate arrest and sentence before return to NSW - Totality - Proportion of minimum to head term of custody - Advanced age of offender - Conditions of detention

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Baker [2000] NSWCCA 85
R v Holder (1983) 3 NSWLR 245
R v Holyoak [1995] 82 A Crim R 502
R v Todd (1982) 2 NSWLR 513

TEXTS CITED: Sentencing Manual (I Potas 2001)

PARTIES: Robert Douglas KIDD - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2002/13968

COUNSEL: M Ramage QC - Applicant
N Noman - Respondent/Crown

SOLICITORS: Jeffreys & Associates - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0283

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

LOWER COURT DATE OF DECISION: 30/07/04

CCA 2002/13968

MACFARLAN JA
GROVE J
HOEBEN J

10 September 2009

Robert Douglas KIDD v R

Judgment

1 MACFARLAN JA: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Karpin DCJ on 30 July 2004 in Sydney District Court. The applicant was tried successively upon three indictments, the trials taking place between August 2003 and May 2004.

3 The notice of appeal was filed on 7 April 2009. An affidavit of Philip Edward Green sworn on that date has been filed in support of an extension of time for filing that notice. Given what appears therein, which it is not necessary for present purposes to summarize and the significant effective sentence required to be served by the applicant, I would grant the necessary extension.

4 Indictment 1 charged robbery whilst armed with a dangerous weapon contrary to s 97 (2) of the Crimes Act 1900. That offence has a prescribed maximum penalty of imprisonment for 25 years. Her Honour sentenced the applicant to a head sentence of 8 years commencing on 26 August 2003 and expiring on 25 August 2011 with a non-parole period of 6 years.

5 This offence (the Manly robbery) took place on 16 July 1997. Her Honour found that this offence involved a very sophisticated level of planning and information gathering concerning the intended victims. The applicant was one of a group of robbers who came into possession of accurate information that the male occupant of a house at Manly was absent overseas and that his wife was alone in the house with their young children.

6 The group of robbers made at least two attempts to…

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 Kidd v The Queen

Details

AGLC: Kidd v The Queen [2009] NSWCCA 229
Case: [2009] NSWCCA 229
Decision Date: 10 September 2009

CaseChat Overview and Summary

In the High Court of Australia, the case of Kidd v The Queen was heard and decided. The appellant, Kidd, was convicted and sentenced in the Supreme Court of New South Wales for various criminal offences. The appeal concerned the sentencing process and the subsequent delay in executing the sentence due to Kidd's interstate arrest and sentencing before being returned to New South Wales. The legal issues before the court centred on the principles of totality and proportionality in sentencing, particularly the appropriate proportion of the minimum term to the head term of custody, and the impact of Kidd's advanced age and the conditions of detention on the sentence.

The court examined whether the trial judge appropriately considered the delay in sentencing and its impact on the overall punishment. It was necessary to determine if the delay warranted a reduction in the sentence to maintain proportionality and if the advanced age and conditions of detention of Kidd should be factored into the sentencing considerations. The court also had to assess whether the sentence imposed was disproportionate given the totality of the circumstances, including the delay and the appellant's personal circumstances. The High Court found that the trial judge did not adequately consider the delay in sentencing and its impact on the proportionality of the sentence. The court held that the delay should have been taken into account, potentially warranting a reduction in the sentence to ensure it remained proportionate.

Consequently, the appeal was allowed, and the case was remitted to the Supreme Court of New South Wales for resentencing. The High Court emphasised the need for trial judges to consider the totality of the circumstances, including any significant delays, when determining an appropriate sentence. The court underscored the importance of proportionality in sentencing and the need to take into account the personal circumstances of the offender, such as age and conditions of detention. The final orders included a direction for the Supreme Court to reassess the sentence, taking into account the principles of totality and proportionality, as well as the delay in sentencing and the appellant's personal circumstances.

Orders