Kirby v The Queen

Case [2003] WASCA 239


KIRBY -v- THE QUEEN [2003] WASCA 239



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 239
COURT OF CRIMINAL APPEAL
Case No:CCA:217/200215 AUGUST 2003
Coram:MALCOLM CJ
ANDERSON J
MCLURE J
10/10/03
13Judgment 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
HEARD : 15 AUGUST 2003 DELIVERED : 10 OCTOBER 2003 FILE NO/S : CCA 217 of 2002
    CCA 218 of 2002
BETWEEN : LENNARD MARK KIRBY
    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.

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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