King v R

Case [2010] NSWCCA 202

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
King v R  [2010] NSWCCA 202
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/6178

HEARING DATE(S):
27 August 2010

JUDGMENT DATE:
10 September 2010

PARTIES:
Jaime Lee King
Regina

JUDGMENT OF:
Basten JA Hall J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/6178

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
20 October 2009

COUNSEL:
Mr W Hunt (Applicant)
Ms N Noman (Respondent)

SOLICITORS:
Mr S O'Connor Legal Aid Commission
Mr S Kavanagh Solicitor for Public Prosecutions

CATCHWORDS:
Criminal law
sentencing
whether hardship to mother and children amounted to special circumstances
whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900 s 99(2), s 527C,

CATEGORY:
Principal judgment

CASES CITED:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Musgrove v R (2007) 167 A Crim R 424
R v Cramp [2004] NSWCCA 264
R v Edwards (1996) 90 A Crim R 510
R v Grbin [2004] NSWCCA 220
R v Murphy [2005] NSWCCA 182

TEXTS CITED:

DECISION:
1.  Leave to appeal granted.  2.  Appeal dismissed.   

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/6178

BASTEN JA
HALL J
PRICE J

10 September 2010

King v R

Judgment

  1. BASTEN JA:  I agree with the orders proposed by Price J for the reasons his Honour gives.

  2. HALL J: I agree with Price J.

  3. PRICE J: The applicant Jaime Lee King seeks leave to appeal against the sentence imposed in the District Court at Penrith on 17 December 2009.  The applicant pleaded guilty on 20 October 2009 to two alternative counts which pleas were accepted by the Crown in full satisfaction of the indictment. 

  4. The first count was an offence of demand property by menaces in company contrary to s 99(2) Crimes Act 1900. An offence contrary to s 99(2) is punishable by imprisonment for 14 years. Two offences on a Form 1, namely an offence of steal from the person contrary to s 94 Crimes Act and an offence of goods in custody contrary to s 527C Crimes Act were taken into account by the Judge on the sentence imposed on the first count.

  5. The applicant was sentenced on the first count to imprisonment with a non-parole period of 2 years 25 days commencing 31 October 2008 and expiring 24 November 2010. A total term of imprisonment of 2 years 9 months 4 days expiring on 3 August 2011 was imposed for this count. The second count was an offence of steal from the person contrary to s 94 Crimes Act. An offence contrary to s 94 is punishable by imprisonment for 14 years. A fixed term of imprisonment of 1 year 10 months 28 days commencing 31 October 2008 and expiring 27 September 2010 was imposed. As this sentence was to be served concurrently, it was wholly subsumed by…

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Details
AGLC
King v R [2010] NSWCCA 202
Case
[2010] NSWCCA 202
Decision Date

CaseChat Overview and Summary

The case of King v R was heard in an Australian court where the applicant, referred to as the defendant, faced sentencing for multiple criminal offences. The offences included robbery and theft from three different victims, all of which occurred on 31 October 2008. The defendant, having admitted to the charges, was granted a 15% discount on her sentence for entering a plea of guilty. The defendant's background, which included a history of sexual abuse, alcohol abuse, and domestic violence, was considered by the court. The defendant's intoxication at the time of the offences, although not a mitigating factor, was noted as an explanation for the commission of the crimes. The primary legal issue the court had to address was whether the hardship experienced by the defendant's mother and children constituted special circumstances that warranted a reduced sentence. Additionally, the court had to determine if the sentence imposed was manifestly excessive.

The court examined the defendant's background and the nature of the offences. It recognised the defendant's troubled past, which included exposure to sexual abuse, alcohol abuse, and domestic violence, and her use of illicit substances to cope with these issues. The court also considered the impact of these offences on the victims and the community. In assessing the defendant's plea of special circumstances due to the hardship to her family, the court noted that while these circumstances were unfortunate, they did not sufficiently mitigate the seriousness of the offences. The court determined that the defendant's intoxication, although not a mitigating factor in the commission of the offences, provided insight into her state of mind at the time of the crimes. The court concluded that the hardship to her family, while regrettable, did not warrant a significant reduction in the sentence. The court found the sentence imposed to be appropriate and not manifestly excessive, taking into account all the circumstances of the case.

The final orders of the court included the imposition of a sentence on the defendant, which was deemed appropriate given the circumstances of the case. The court upheld the original sentence, finding no grounds for a substantial reduction based on the defendant's special circumstances. The court emphasised the importance of considering the impact of the offences on the victims and the community, alongside the defendant's background and state of mind at the time of the crimes. The court's decision reflected a balanced approach, recognising the defendant's troubled past while also ensuring that justice was served for the victims.

Orders

Orders of the court

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Background

Background to the litigation

The Judge had found that the applicant was entitled to a utilitarian discount for the pleas of guilty of 15 per cent. FACTS The facts of the offences were not in dispute and a statement of agreed facts was tendered. The facts may conveniently be summarised as follows: Count 1: At around 1.45am on 31 October 2008, the applicant approached the victim ‘RS’ and demanded his phone. She was part of a larger group who had gathered around him. When she was told by the victim that he did not have a phone, the applicant repeated the demand. At that stage, a co-offender, who was standing nearby, approached the victim telling him to go around the corner with him or he would be stabbed. The victim refused. The co-offender then told the victim that if he did not go around the corner he would be punched. The victim told the co-offender to leave him alone as he had nothing. The co-offender moved away. Count 2: At around 4pm on 31 October 2008, the applicant approached the victim ‘CA’ and took a mobile phone out of CA’s mobile phone pouch. Two males were with the applicant at the time. When CA said “give it back”, one of the males with the applicant took a step towards him. The applicant then left with the mobile phone. Form 1 – steal from the person At about 6.30pm on 31 October 2008, the applicant approached the victim ‘EB’ and reached into EB’s bag, took out her wallet and started going through it. EB told the applicant that she did not have any money in her wallet as she was holding it. The applicant then grabbed $7 from EB’s hand. When the applicant took a cigarette holder from EB’s wallet, EB asked for it back as it had sentimental value, which the applicant refused to do. Form 1 – goods in custody Whilst in custody at Blacktown police station, the applicant was found to be in the possession of various cards belonging to ‘JV’ which included a Commonwealth Bank keycard, Medicare card, pension card and repatriation health card. Police were told by JV that the last time she had seen the cards was when she put them in her handbag before going to a shopping centre on 31 October 2008. Subjective circumstances The applicant was born in New Zealand in February 1982 and was 27 years old at the time of sentence. Her family migrated to Australia when she was seven years old. The Judge accepted that the applicant had been subjected to sexual abuse by a family member and exposed to alcohol abuse and domestic violence. Her Honour noted that the applicant had provided a history to the Probation Service of consuming illicit substances from the aged of fourteen “to block out the aftermath of sexual abuse” and had “abused heroin up until the birth of her first child in 2001.” The Judge observed that “in more recent times, alcohol had been her downfall” and it was “conceded by the Crown that the offences for which she now faces sentence were all committed when she was highly intoxicated.” Her Honour was mistaken when she made this observation as the Crown’s concession that the applicant was “significantly intoxicated” did not extend to the first count. The Judge remarked that the applicant’s intoxication was not a mitigating factor but provided an explanation as to how the offences came to be committed. Her Honour noted that the applicant had been attending Alcoholics Anonymous since her return to custody, had been prescribed anti-depressants and anti-psychotic medication and had been diagnosed with a drug-induced psychosis.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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