KIRBY -v- THE QUEEN [2003] WASCA 239
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 239 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:217/2002 | 15 AUGUST 2003 | |
| Coram: | MALCOLM CJ ANDERSON J MCLURE J | 10/10/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | LENNARD MARK KIRBY THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Parole eligibility Fixed terms ordered to be served cumulatively Aggregation of terms Calculation of earliest release dates Parity Disparity arising from respective dates of release |
Legislation: | Sentence Administration Act 1995, s 7(2), s8(1) Sentencing Administration Act, 2003 Sentencing Act 1995, s 88(4), s 93, s 94 |
Case References: | Hoare v The Queen (1989) 167 CLR 348 Kirby v The Queen [2003] WASCA 164 Pearce v The Queen (1998) 194 CLR 610 Pinkstone v The Queen [2003] WASCA 66 R v Archibald (1989) 40 A Crim R 228 R v Gisbourne, unreported; CA; 14 March 1977 R v Swain (1989) 41 A Crim R 214 Wicks v The Queen (1989) 3 WAR 372 Wilson v The Queen, unreported; CCA SCt of WA; Library No 7325; 20 October 1988 Langridge v The Queen (1996) 17 WAR 346 Lowe v The Queen (1984) 154 CLR 606 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 R v Olbrich (1999) 199 CLR 270 Storey v The Queen [1998] 1 VR 359 Wong v The Queen [2001] 76 ALJR 79 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KIRBY -v- THE QUEEN [2003] WASCA 239 CORAM : MALCOLM CJ
- ANDERSON J
MCLURE J
- CCA 218 of 2002
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Parole eligibility - Fixed terms ordered to be served cumulatively - Aggregation of terms - Calculation of earliest release dates - Parity - Disparity arising from respective dates of release
Legislation:
Sentence Administration Act 1995, s 7(2), s8(1)
Sentencing Administration Act, 2003
Sentencing Act 1995, s 88(4), s 93, s 94
(Page 2)
Result:
Application for leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr S A Shirrefs SC
Respondent : Mr D Dempster
Solicitors:
Applicant : Gary Massey & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hoare v The Queen (1989) 167 CLR 348
Kirby v The Queen [2003] WASCA 164
Pearce v The Queen (1998) 194 CLR 610
Pinkstone v The Queen [2003] WASCA 66
R v Archibald (1989) 40 A Crim R 228
R v Gisbourne, unreported; CA; 14 March 1977
R v Swain (1989) 41 A Crim R 214
Wicks v The Queen (1989) 3 WAR 372
Wilson v The Queen, unreported; CCA SCt of WA; Library No…
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- Kirby v The Queen [2003] WASCA 239
- Case
- [2003] WASCA 239
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CaseChat Overview and Summary
The case of Kirby v The Queen involved the appellant, who had been sentenced to imprisonment for several offences. The central issue was the calculation of parole eligibility and the potential disparity arising from the dates of release for different terms of imprisonment. The High Court of Australia was tasked with resolving this issue.
The legal issue before the court was whether the terms of imprisonment should be considered cumulatively for the purpose of parole eligibility, and if so, how this would affect the calculation of the earliest release dates. The appellant argued that the terms should not be aggregated, while the respondent maintained that the terms should be considered cumulatively, which would result in a later date of parole eligibility. The court was required to determine the correct approach to sentencing in this context.
In its decision, the court examined the principles of sentencing and the objectives of the legislation. It held that the terms of imprisonment should indeed be aggregated for the purpose of calculating parole eligibility. This approach ensured parity in the treatment of offenders and aligned with the legislative intent to provide a fair and consistent system of sentencing. The court further determined that the dates of release should be calculated based on the aggregated terms, even if this resulted in a later date of parole eligibility. The court dismissed the appeal, confirming that the terms of imprisonment should be considered cumulatively for the purpose of parole eligibility, and that the dates of release should be calculated accordingly. The application for leave to appeal was granted, but the appeal itself was dismissed, leaving the original sentence and parole eligibility calculation in place.
The legal issue before the court was whether the terms of imprisonment should be considered cumulatively for the purpose of parole eligibility, and if so, how this would affect the calculation of the earliest release dates. The appellant argued that the terms should not be aggregated, while the respondent maintained that the terms should be considered cumulatively, which would result in a later date of parole eligibility. The court was required to determine the correct approach to sentencing in this context.
In its decision, the court examined the principles of sentencing and the objectives of the legislation. It held that the terms of imprisonment should indeed be aggregated for the purpose of calculating parole eligibility. This approach ensured parity in the treatment of offenders and aligned with the legislative intent to provide a fair and consistent system of sentencing. The court further determined that the dates of release should be calculated based on the aggregated terms, even if this resulted in a later date of parole eligibility. The court dismissed the appeal, confirming that the terms of imprisonment should be considered cumulatively for the purpose of parole eligibility, and that the dates of release should be calculated accordingly. The application for leave to appeal was granted, but the appeal itself was dismissed, leaving the original sentence and parole eligibility calculation in place.
Orders
Orders of the court
Application for leave to appeal granted
Appeal dismissed
Background
Background to the litigation
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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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