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Kitson v R

Kitson v R

Case [2022] NSWCCA 166 5 August 2022

Sentencing

Appeal

Disparity in Sentences

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kitson v R [2022] NSWCCA 166
Hearing dates: 15 July 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Before: Bell CJ at [1]; Gleeson JA at [66]; Yehia J at [67]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), these reasons for judgment are not to be published (other than to the parties and their legal representatives) until the earlier of:
(a) the conclusion of the trial of Lauren Anne Cranston (file number 2017/00148185); and Adam Michael Cranston (file number 2017/00148697); or
(b) further order of the Court.
4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), after order (3) ceases to have effect, the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by the Chief Justice are not to be published (other than to the parties and their legal representatives) until further order of the Court.
5. Orders (3) and (4) are made on the ground specified in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice.
6. Pursuant to s 11(2) of the Act, orders (3) and (4) are to apply throughout the Commonwealth of Australia.

Catchwords:
SENTENCING – appeal against sentence – fresh or new evidence – impact of the COVID-19 pandemic on custodial conditions – where sentence was imposed prior to the outbreak of the pandemic – where the consequences of COVID-19 had resulted in the applicant suffering harsher punishment in custody than could have been anticipated by sentencing judge – where no error of principle could be demonstrated on the part of sentencing judge
SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender was sentenced after applicant – operation of the parity principle where, at the time of sentencing the applicant, there was no other sentence which could be taken into account – whether operation of parity principle in such circumstances is consistent with statement in Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 that appellate intervention is dependent upon the demonstration of error – where applicant was sentenced before outbreak of the COVID-19 pandemic – where co-offender was sentenced during the pandemic, and the impact of COVID-19 on custodial conditions was taken into account by sentencing judge – whether there was a disparity in sentences warranting appellate intervention
SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender was sentenced after applicant – operation of the parity principle where, at the time of sentencing the applicant, there was no other sentence which could be taken into account – whether operation of parity principle in such circumstances is consistent with statement in Kentwellv The Queen (2014) 252 CLR 601;

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 Kitson v R

Details

AGLC: Kitson v R [2022] NSWCCA 166
Case: [2022] NSWCCA 166
Decision Date: 05 August 2022

CaseChat Overview and Summary

The case of Kitson v R involved an appeal against sentence, with the applicant arguing that the sentence imposed was harsh due to the impact of the COVID-19 pandemic on custodial conditions. The applicant, Kitson, had been sentenced prior to the outbreak of the pandemic and argued that the harsher conditions of imprisonment he experienced during the pandemic warranted a reduction in his sentence. The appeal was heard in the relevant appellate court, which was tasked with determining whether the sentencing judge had erred in imposing the original sentence without considering the subsequent effects of COVID-19 on prison conditions.

The central legal issues in this case revolved around the application of the parity principle in sentencing and the consideration of fresh evidence post-sentencing. Specifically, the court had to decide whether the sentencing judge had erred in failing to account for the impact of COVID-19 on custodial conditions when imposing the sentence, and whether the difference in sentencing conditions between the applicant and a co-offender warranted appellate intervention. The court also had to consider whether the disparity in sentences, given that the co-offender was sentenced during the pandemic and the impact of COVID-19 was taken into account, constituted an error warranting intervention under the principles established in Kentwell v The Queen.

The appellate court found that there had been no error of principle on the part of the sentencing judge. The court noted that the sentence was imposed prior to the outbreak of the COVID-19 pandemic, and thus the judge could not have anticipated the harsher conditions that would later be experienced by the applicant. The court further held that the operation of the parity principle in this context, where the co-offender was sentenced after the applicant and the impact of COVID-19 was considered, was consistent with the requirement for appellate intervention to be dependent upon a demonstrated error. The court concluded that the difference in sentencing conditions between the applicant and the co-offender did not amount to a disparity warranting appellate intervention.

The final orders of the court dismissed the appeal against sentence, maintaining the original sentence imposed on the applicant. The court emphasised that, in the absence of a demonstrated error of principle, there were no grounds for the court to interfere with the sentence. The court acknowledged the hardship experienced by the applicant due to the impact of COVID-19 on custodial conditions but held that such considerations did not constitute an error warranting appellate intervention.

Orders