Kingsley v The Queen - [2019] NSWCCA 19

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kingsley v R [2019] NSWCCA 19
Hearing dates: 12 September 2018
Decision date: 20 February 2019
Before: Leeming JA at [1];
McCallum J at [2];
Bellew J at [48]
Decision:
The application for an extension of the time within which to file a notice of application for leave to appeal is refused

Catchwords: CRIMINAL LAW – sentence – charges of reckless wounding in company – whether sentencing judge erroneously had regard to injuries that might have exposed the applicant to the more serious offence of wounding with intent to inflict grievous bodily harm contrary to the principle stated in De Simoni – parity
Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(a), 35(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Cases Cited: McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305
R v Bakewell (Court of Criminal Appeal (NSW), 27 June 1996, unrep)
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Lardner (Court of Criminal Appeal (NSW), 10 September 1998, unrep)
R v Overall (1993) 71 A Crim R 170
Wilkins v R [2009] NSWCCA 222
Category: Principal judgment
Parties: Luke Kingsley (applicant)
Regina (respondent)
Representation:
Counsel:
P Lange (applicant)
F Veltro (respondent)
Solicitors:
Hardin Lawyers (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2015/241413
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

16 June 2017

Before:

Frearson DCJ

File Number(s):

2015/241413

Judgment

LEEMING JA: I agree with McCallum J.
McCALLUM J: Luke Kingsley seeks leave to appeal against the sentence imposed upon him in the District Court on 16 June 2017 after he pleaded guilty to two counts of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 10 years. A standard non-parole period of 4 years is prescribed for the offence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, item 4C of the Table).
The reckless wounding charges were alternative counts on an indictment that contained two primary counts of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act (an offence which carries a maximum penalty of 25 years and a standard non-parole period of 7 years). The applicant’s late pleas to the alternative counts, entered in the District Court, were accepted in full satisfaction of the indictment. The applicant was allowed a discount of 10% for the utilitarian value of the pleas. He was sentenced to an aggregate sentence of imprisonment for 6 years with a non-parole period of 4 years commencing on 18 August 2015.
The structure of the sentence reflects a departure from the statutory ratio of the balance of term to the non-parole period which the sentencing judge found was warranted by his finding that the applicant would require extended supervision to assist him to re-enter the community having regard 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 Kingsley v The Queen

Details

AGLC: Kingsley v The Queen [2019] NSWCCA 19
Case: [2019] NSWCCA 19
Decision Date: 20 February 2019

CaseChat Overview and Summary

The applicant, Kingsley, was charged with reckless wounding in company. The case was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge had incorrectly considered the potential for more severe injuries that might have led to a charge of wounding with intent to inflict grievous bodily harm, which is a more serious offence. This consideration was assessed against the principle established in the case of De Simoni, which emphasises the importance of parity in sentencing, ensuring that the sentence is proportionate to the offence for which the person was actually charged and convicted.

The High Court held that the sentencing judge did indeed consider the possibility of more severe injuries that could have led to a more serious charge. However, the court determined that this did not necessarily mean the sentence was disproportionate or erroneous. The key consideration was whether the sentence was proportionate to the offence for which the applicant was convicted. The court found that the sentence was proportionate to the offence of reckless wounding in company and did not contravene the principle of parity as articulated in De Simoni. The court's reasoning was based on the principle that a sentencing judge may take into account the potential consequences of the act when determining the appropriate sentence, provided that the sentence ultimately imposed is proportionate to the offence of conviction.

In conclusion, the High Court upheld the sentence, affirming that the sentencing judge's consideration of potential more severe injuries was not erroneous and did not result in a disproportionate sentence. The court emphasised that the principle of parity requires that the sentence be proportionate to the offence of conviction, and in this case, the sentence was deemed appropriate for the offence of reckless wounding in company. No orders were made to alter the sentence imposed by the lower court.

Orders