Kiss v R

Case [2021] NSWCCA 158 16 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kiss v R [2021] NSWCCA 158
Hearing dates: 17 March 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Before: Simpson AJA at [1]
Bellew J at [111]
Wilson J at [112]
Decision:
Proceedings 2014/211316:
(1)   the time in which to apply for leave to appeal is extended to 4 November 2020;
(2)   leave to appeal against sentence is granted;
(3)   appeal allowed, sentence imposed on 28 October 2016 is quashed;
(4)   in lieu thereof the applicant be sentenced to an aggregate term of imprisonment made up of a non-parole period of 6 years and 4 months, commencing on 24 April 2016 and expiring on 23 August 2022, with a balance of term of 2 years and 2 months which will expire on 23 October 2024.
Proceedings 2014/314401:
(1)   leave to appeal granted;
(2)   the commencement date of the sentence is varied; sentence to commence on 23 August 2019, and expire on 22 August 2032; non-parole period to expire on 22 February 2028;
(3)   appeal otherwise dismissed.

Catchwords:
SENTENCING – appeal against sentence – money laundering offences – co-offenders – disparity between sentences – first co-offender’s sentence reduced on appeal due on parity principles – applicant faced charges carrying significantly lower penalties than those faced by second co-offender but applicant’s sentence significantly more severe – legitimate sense of grievance demonstrated – sentence set aside – sentencing discretion re-exercised – adjustment achieved by restoring proportions with first co-offender’s sentence
SENTENCING – appeal against sentence – sexual assault offences – whether primary judge erred in assessing objective seriousness – whether applicant had actual knowledge of absence of consent – knowledge clearly established as absence of consent manifest by violent assaults which preceded sexual assaults – whether offences less serious where committed in context of ongoing consensual relationship – no principle that sexual assault committed in prior or existing relationship is, for that reason alone, less serious than one committed by a stranger – Bussey v R [2020] NSWCCA 280
SENTENCING – appeal against sentence – whether level of accumulation resulted in overall manifestly excessive sentence – sentence lengthy but justified – no error by primary judge established

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)
Evidence Act 1995 (NSW)
Prevention of Cruelty to Animals Act 1979 (NSW)

Cases Cited:
Berry, Arthur John (1988) 10 Cr App R (S) 13
Bussey v R [2020] NSWCCA 280
Cox, David Edward (1985) 7 Cr App R (S) 422
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Halliday (Court of Criminal Appeal (VIC), 21 March 1990, unrep)
Humphreys v R [2020] NSWCCA 144
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606; [1984]…

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 Kiss v R

Details

AGLC: Kiss v R [2021] NSWCCA 158
Case: [2021] NSWCCA 158
Decision Date: 16 July 2021

CaseChat Overview and Summary

The applicant, Kiss, appealed against his sentence for money laundering offences. Kiss was convicted alongside a co-offender, who also appealed his sentence. The disparity between the sentences imposed on Kiss and his co-offender led to the appeal on parity principles. Kiss faced charges carrying significantly lower penalties than those faced by the second co-offender, but his sentence was considerably more severe. Kiss demonstrated a legitimate sense of grievance, leading the court to set aside the sentence and re-exercise its sentencing discretion.

The court examined whether the primary judge erred in assessing the objective seriousness of the sexual assault offences and whether Kiss had actual knowledge of the absence of consent. The court found that the knowledge of the absence of consent was clearly established as it was manifest by the violent assaults preceding the sexual assaults. The court also considered whether the offences were less serious because they were committed in the context of an ongoing consensual relationship. The court ruled that there was no principle that a sexual assault committed in a prior or existing relationship was, for that reason alone, less serious than one committed by a stranger. The court also considered whether the level of accumulation resulted in an overall manifestly excessive sentence, and found that the lengthy sentence was justified, and no error by the primary judge was established.

The court set aside the sentence and re-exercised its sentencing discretion, adjusting the sentence to restore the proportions with the first co-offender's sentence. The court ordered that Kiss's sentence be reduced, reflecting the appropriate balance between his culpability and the need for punishment and deterrence.

Orders