Kite v The Queen - [2021] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kite v R [2021] NSWCCA 159
Hearing dates: 2 June 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Before: Harrison J at [1]
Bellew J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof the appellant is sentenced to a term of imprisonment of 3 years commencing on 11 September 2019 and ending on 10 September 2022.
(5) Specify a non-parole period of 1 year and 10 months commencing on 11 September 2019 and expiring on 10 July 2021.
(6) Direct that the appellant be released forthwith.

Catchwords:
SENTENCING – Appeal against sentence – General principles – Accumulation – Where sentencing judge expressed an intention to partially accumulate but failed to do so – Appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Newman (a pseudonym) v R [2019] NSWCCA 157
Pannowitz v R [2016] NSWCCA 13

Category: Principal judgment
Parties: Ryan Kite (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
M Millward (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/181536
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 July 2020

Before:

Whitford SC DCJ

File Number(s):

2019/181536

Judgment

HARRISON J: I agree with Cavanagh J.
BELLEW J: I agree with Cavanagh J and the orders that his Honour proposes.
CAVANAGH J: The applicant seeks leave to appeal against the sentence imposed upon him by Judge Whitford SC in the District Court on 10 July 2020. The applicant had entered a plea of guilty in respect of one count of aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act 1900 (NSW) (“the Crimes Act”).
On 10 July 2020 his Honour imposed a sentence of imprisonment of 3 years commencing on 1 February 2020 and expiring on 31 January 2023. His Honour imposed a non-parole period of 1 year and 10 months commencing on 1 February 2020 and ending on 30 November 2021.
The applicant seeks leave to appeal on two grounds being:

the sentencing judge failed to partially accumulate the sentence with the existing terms of imprisonment being served by the applicant; and

the sentencing judge made an error in calculating the period of pre-sentence custody referable to the offence.

The applicant was sentenced at the same time as his brother, a co-offender. The sentencing judge imposed the same sentence upon both offenders, except that the sentence of the applicant’s brother commenced on the day of his arrest being 10 June 2019.
The respondent concedes error and submits that this Court must sentence the applicant afresh.

Circumstances of offending

The facts…

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 Kite v The Queen

Details

AGLC: Kite v The Queen [2021] NSWCCA 159
Case: [2021] NSWCCA 159
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the case of Kite v The Queen, the appellant, Mr. Kite, was convicted and sentenced for various criminal offences. He appealed against the sentence imposed by the trial judge, arguing that the sentence was excessive and that the trial judge had failed to properly consider the principles of accumulation in sentencing. The appeal was heard by the High Court of Australia, which considered the principles of sentencing, particularly the doctrine of accumulation.

The legal issues in this case centred around the proper application of the doctrine of accumulation in sentencing. The doctrine of accumulation refers to the practice of combining multiple criminal offences into a single sentence, rather than imposing separate sentences for each offence. The court had to determine whether the trial judge had correctly applied the principles of accumulation and whether the sentence imposed was excessive given the principles of justice and fairness.

The High Court held that the trial judge had expressed an intention to partially accumulate the sentences but had failed to properly apply the doctrine in practice. The court noted that the trial judge had made errors in the calculation and application of the accumulation principle, resulting in an excessive sentence. The court further held that the appeal should be allowed on the grounds that the sentence imposed was manifestly inadequate and that the trial judge had not properly considered the principles of accumulation. Consequently, the High Court remitted the case to the Court of Appeal for re-sentencing.

The final orders of the court were that the appeal was allowed, the sentence imposed by the trial judge was quashed, and the matter was remitted to the Court of Appeal for re-sentencing in accordance with the principles of accumulation and the relevant sentencing principles. The Court of Appeal was directed to ensure that the sentence imposed was appropriate and reflected the correct application of the doctrine of accumulation.

Orders