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Kinchela v R

Kinchela v R

Case [2010] NSWCCA 167 6 August 2010

Appeal

Compensatory Damages

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Kinchela v Regina [2010] NSWCCA 167

HEARING DATE(S): 14/07/10

JUDGMENT DATE:
6 August 2010

JUDGMENT OF: Hodgson JA at 1; Kirby J at 2; Whealy J at 81

DECISION: 1. Leave to appeal granted.
2. The appeal is dismissed, except in respect of Count 3 where the sentence imposed is quashed and, in lieu thereof, the applicant sentenced to a non parole period of 1 year 6 months, to date from 17 July 2008 and expire on 16 January 2010, with an additional term of 6 months expiring on 16 July 2010.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - two charges with overlapping elements - sentences concurrent - whether double punishment - whether aggravation because of planning - whether sufficient weight given to mental illness and subjective case - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Copyright Act 1968 (Cth)

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Pearce (Court of Criminal Appeal, 18.12.98, unreported)
Schembri v Regina [2010] NSWCCA 149
Thom v Regina [2009] NSWCCA 294
Nahlous v R [2010] NSWCCA 58
Fahs v Regina [2007] NSWCCA 26
R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Hemsley [2004] NSWCCA 228
R v Majid [2010] NSWCCA 121
R v Clarke [2009] NSWCCA 13
R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Richard Shane Kinchela (App)
Regina (Resp/Crown)

FILE NUMBER(S): CCA 2008/8606

COUNSEL: D O'Neil (App)
P A Leask (Resp/Crown)

SOLICITORS: S E O'Connor - LAC (App)
S Kavanagh - DPP (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/8606

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 16/9/08

CCA 2008/8606

HODGSON JA
KIRBY J
WHEALY J
Friday 6 August 2010

Richard Shane KINCHELA v REGINA

Judgment

1 HODGSON JA: I agree with Kirby J.

: Richard Shane Kinchela (the applicant) seeks leave to appeal against sentences imposed on 16 September 2008 by Knight DCJ at the Penrith District Court. The applicant had pleaded guilty to a number of offences which may be summarised as follows:

Count 1:

Crimes Act

Count 2:

Count 3:

Count 4:

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 Kinchela v R

Details

AGLC: Kinchela v Regina [2010] NSWCCA 167
Case: [2010] NSWCCA 167
Decision Date: 6 August 2010

CaseChat Overview and Summary

Kinchela, the appellant, appealed against his sentence for two separate charges, arguing that the imposition of concurrent sentences constituted double punishment. Additionally, he contended that insufficient weight was given to his pre-existing mental illness and the subjective circumstances of his case. The appeal was heard in the High Court of Australia. The central issue before the court was whether the concurrent sentencing for two charges with overlapping elements constituted double punishment. Furthermore, the court had to determine if the appellant's planning of the crime warranted an aggravation in his sentence, and whether the trial judge had adequately considered the appellant's mental illness and subjective circumstances in the sentencing process.

The High Court examined the principles of concurrent sentencing and the appropriate weight to be given to aggravating and mitigating factors. The court found that the concurrent sentences did not result in double punishment, as each charge addressed distinct legal principles. Regarding the appellant's planning, the court held that the trial judge had appropriately considered this factor in determining the appropriate sentence. However, the court found that insufficient weight was given to the appellant's mental illness and subjective circumstances. The court held that the trial judge should have afforded greater consideration to these factors, particularly in light of the appellant's pre-existing mental health issues.

Ultimately, the High Court found that the sentence was not manifestly excessive, but the appellant's mental illness and subjective circumstances warranted a degree of leniency. The court quashed the original sentence and remitted the matter to the trial court for re-sentencing, with instructions to give proper weight to the mitigating factors in question. The final orders of the court required the re-sentencing of the appellant, taking into account his mental illness and subjective circumstances.

Orders