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Kirby v R

Kirby v R

Case [2021] NSWCCA 162 19 July 2021

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kirby v R [2021] NSWCCA 162
Hearing dates: 31 May 2021
Date of orders: 19 July 2021
Decision date: 19 July 2021
Before: Harrison J at [1]
Beech-Jones J at [2]
Cavanagh J at [49]
Decision:
(1) Grant the applicant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords:
SENTENCING – police officer victim of offence under s 33B(1) of Crimes Act – whether erroneous to refer to their status as aggravating circumstance – no error established - sentencing judge only considered status of victim in characterising objective seriousness of offence - alleged double punishment revealed by indicative sentences – no common elements – sentence not manifestly excessive – leave to appeal granted but appeal dismissed.

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
BJS v R [2013] NSWCCA 123
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297
Lee v R [2020] NSWCCA 244
PD v R [2012] NSWCCA 242
Pearce v R (1998) 194 CLR 610; [1998] HCA 57
Portolesi v R [2012] NSWCCA 157

Category: Principal judgment
Parties: Neil Mark Kirby (Applicant)
Regina (Crown)
Representation:
Counsel:
Mr S Lawrence (Applicant)
Ms E Wilkins SC (Crown)
Solicitors:
Legal Aid (NSW) (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2018/237762
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 December 2019

Before:

Robison DCJ

File Number(s):

2018/237762

Judgment

HARRISON J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by his Honour Judge Robison for eight offences of violence that his Honour found to be committed following a judge alone trial.
On 16 December 2019, his Honour sentenced the applicant to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 4 years imprisonment. The sentence commenced on 1 August 2018 and expires on 31 January 2026.
None of the eight offences carried a standard non-parole period. The indicative sentences specified for each of the offences pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Procedure Act”), their maximum penalty, and Judge Robison’s finding as to objective seriousness were as follows:

Count

Offence

Finding of Objective Seriousness

Maximum Penalty

Indicative Term

1

Common Assault, Crimes Act 1900, s 61

(Victim: Kennedy)

“Low end”

2 years imprisonment

3 months imprisonment

2

Assault occasioning bodily harm, Crimes Act 1900, s 59

(Victim: Kennedy)

“Above mid-range, towards the high range”

5 years imprisonment

1 year 9 months imprisonment

3

Intentional choking, Crimes Act 1900, s 37(1)

(Victim: Kennedy)

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 Kirby v R

Details

AGLC: Kirby v R [2021] NSWCCA 162
Case: [2021] NSWCCA 162
Decision Date: 19 July 2021

CaseChat Overview and Summary

The defendant in this case was found guilty of committing an offence against a police officer under section 33B(1) of the Crimes Act. The case was appealed against the sentence imposed by the trial judge. The central issue before the court was whether the trial judge erred in considering the status of the victim as an aggravating circumstance, and if the sentence was manifestly excessive. The court had to determine if the trial judge's consideration of the victim's status was erroneous and whether the sentence was manifestly excessive.

The court examined the sentencing principles and whether the trial judge erred in considering the status of the victim as an aggravating circumstance. The court found no error in the trial judge's consideration of the victim's status, as it was only used to characterise the objective seriousness of the offence. The court also examined the indicative sentences to determine if there was alleged double punishment. It was found that there were no common elements, and the sentence was not manifestly excessive. Consequently, the appeal was dismissed.

The court held that the trial judge did not err in considering the status of the victim as an aggravating circumstance, and the sentence imposed was not manifestly excessive. The court found that the trial judge only considered the victim's status in characterising the objective seriousness of the offence, and there were no common elements in the indicative sentences that would suggest alleged double punishment.

The appeal was dismissed, and the sentence imposed by the trial judge was upheld. Leave to appeal was granted, but the appeal was ultimately unsuccessful.

Orders