King v Regina - [2011] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: KING v REGINA [2011] NSWCCA 46
Hearing dates: Wednesday 2 March 2011
Decision date: 24 March 2011
Before: Hodgson JA at 1
Adams J at 2
Hall J at 3
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - whether sentence manifestly excessive - applicant on conditional bond at time of offence - offence contrary to s.112(1) malicious damage by fire of place of employment - damage in excess of $1.5 million - whether trial judge erred in not taking sufficiently into account subjective factors - whether use of the term "mid-range of objective seriousness" in error where there is no standard non-parole period - remarks on sentence addressed in detail objective and subjective factors - offence objectively very serious - applicant not truthful to the Court regarding his circumstances
Legislation Cited: Crimes Act 1900
Cases Cited: Hinchcliffe v Regina [2010] NSWCCA 306
House v The King (1936) 55 CLR 499
Regina v Cage [2006] NSWCCA 304
Regina v Gaudry & McDonald [2010] NSWCCA 70
Regina v Sivell [2009] NSWCCA 286
Regina v Way (2004) 60 NSWLR 168
Category: Principal judgment
Parties: Nelson Gary KING v REGINA
Representation: Counsel:
Crown: C Maxwell QC
App: A Francis
Solicitors:
Crown: S Kavanagh
App: S E O'Connor

File Number(s): 2008/11357
Decision under appeal

Date of Decision:

2008-10-02 00:00:00

Before:

English DCJ

File Number(s):

2008/11357

Judgment

HODGSON JA: I agree with Hall J.

ADAMS J: I agree with Hall J.

HALL J: The applicant, by way of notice dated 9 November 2010, seeks leave to appeal against a sentence imposed upon him in the District Court at Wagga Wagga (Her Honour Judge English) on 2 October 2009.

The applicant pleaded guilty to one count of break, enter and commit a serious indictable offence (malicious damage by fire) under s.112(1) of the Crimes Act 1900. An offence under that section carries a maximum penalty of 14 years.

The offence to which the applicant pleaded guilty in the Local Court was committed on 7 November 2007 at Wagga Wagga.

Earlier in the same year, namely, on 28 February 2007, the applicant appeared for sentence with respect to three offences, namely, enter building with intent to commit an indictable offence (s.114(1)(d) of the Crimes Act ), larceny (s.117 of the Crimes Act ) and malicious damage (s.195(1)(a) of the Crimes Act ).

In respect of those offences, the applicant was sentenced in the Local Court at Wagga Wagga for each offence to 18 months' imprisonment, suspended upon him entering into a conditional bond. The applicant breached the bond through the commission of the offence under s.112(1) on 7 December 2007.

The applicant consented to English DCJ dealing with the breach of the bond at the time of sentencing him in respect of the offence under s.112(1). Her Honour revoked the bond and imposed a non-parole period of 12 months and a parole period of 6 months to date from 18…

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 King v Regina

Details

AGLC: King v Regina [2011] NSWCCA 46
Case: [2011] NSWCCA 46
Decision Date: 24 March 2011

CaseChat Overview and Summary

The case of King v Regina involved an appeal against sentence by the applicant, who was found guilty of malicious damage by fire contrary to section 112(1) of the relevant legislation. The applicant committed the offence while on a conditional bond and caused damage exceeding $1.5 million to his place of employment. The trial judge sentenced the applicant to a term of imprisonment, and the applicant appealed, arguing that the sentence was manifestly excessive and that the trial judge failed to adequately consider certain subjective factors.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive and whether the trial judge erred in not sufficiently considering the subjective factors in the sentencing process. The applicant also argued that the trial judge's use of the term "mid-range of objective seriousness" was erroneous, given the absence of a standard non-parole period for the offence. Additionally, the applicant submitted that the trial judge did not adequately address the objective and subjective factors when imposing the sentence.

In considering the appeal, the court carefully examined the remarks made by the trial judge, noting that both objective and subjective factors had been addressed in detail. The court found that the offence was objectively very serious, with significant damage caused to the applicant's former employer. Furthermore, the court noted that the applicant was not truthful to the Court regarding his circumstances, which impacted the sentencing decision. The court concluded that the sentence imposed was not manifestly excessive and that the trial judge had appropriately considered the relevant factors in reaching the sentencing decision.

No orders were made by the court as the appeal against sentence was dismissed.

Orders