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Kliendienst v R

Kliendienst v R

Case [2020] NSWCCA 98 20 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kliendienst v R [2020] NSWCCA 98
Hearing dates: 16 March 2020
Date of orders: 20 May 2020
Decision date: 20 May 2020
Before: Simpson AJA at [1]
Rothman J at [2]
N Adams J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed on the applicant in the Port Macquarie District Court on 22 January 2019 is quashed.
(4) In lieu thereof, the applicant is sentenced to an aggregate sentence of 3 years and 9 months to commence on 26 April 2018 and expire on 25 January 2022 and a non-parole period of 2 years and 1 month to commence on 26 April 2018 and expire on 25 May 2020.
(5) Pursuant to s 53A(4) of the Crimes (Sentencing Act Procedure) Act 1999 (NSW) the indicative sentences are:
Count 1: 18 months’ imprisonment.
Count 2: 3 years’ imprisonment with a non-parole period of 2 years.

Catchwords: CRIME – appeals – appeal against sentence – using offensive instrument with intent – reckless wounding – reference to R v Way – whether sentencing principles applied erroneously – applicant’s moral culpability – Bugmy factors – notional accumulation – whether failure to provide adequate reasons
Legislation Cited: Crimes Act 1900 (NSW), s 27, s 33(1)(a), s 33B(1)(a)
Crimes (Sentencing Act Procedure) Act 1999 (NSW), s 44(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: Berryman v R [2017] NSWCCA 297
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Burgess v R [2019] NSWCCA 13
Cahyadi v R [2007] NSWCCA 1
Campbell v R [2018] NSWCCA 17
Chaouk v R [2017] NSWCCA 295
Griffin v R [2018] NSWCCA 259
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mifsud v Campbell (1991) 21 NSWLR 725
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Osborne v R [2015] NSWCCA 260
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Rae [2013] NSWCCA 9
R v Way (2004) 60 NSWLR 16; [2004] NSWCCA 131
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 725; Horvath v R [2019] NSWCCA 285
Taitoko v R [2020] NSWCCA 43
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Tuite v R [2018] NSWCCA 175
Vaughan v R [2020] NSWCCA 3
ZA v R [2017] NSWCCA 132
Zreika v R (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Orey Thomas Kliendienst (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid Commission of NSW (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00132001
Publication restriction: Nil

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 Kliendienst v R

Details

AGLC: Kliendienst v R [2020] NSWCCA 98
Case: [2020] NSWCCA 98
Decision Date: 20 May 2020

CaseChat Overview and Summary

The case before the court was an appeal by the applicant against his conviction and sentence for using an offensive instrument with intent to commit an indictable offence, namely reckless wounding. The applicant, who had been convicted of using a knife to wound another person, appealed against the sentence imposed by the County Court of Victoria. The appeal raised questions about the application of sentencing principles and whether the trial judge had erred in failing to provide adequate reasons for the sentence imposed.

The primary legal issue the court needed to address was whether the sentencing principles had been applied erroneously, specifically whether the trial judge had failed to consider the applicant's moral culpability and the factors outlined in Bugmy. The applicant argued that the trial judge had not adequately addressed these matters, which led to an inappropriate sentence. The court was also required to determine if the notional accumulation of sentences for multiple offences had been correctly calculated and if the trial judge had erred in failing to provide adequate reasons for the sentence imposed.

The court found that the trial judge had indeed failed to adequately address the applicant's moral culpability and the Bugmy factors, which constituted an error in the application of sentencing principles. The court noted that the trial judge had not provided a clear explanation of how these factors were considered in determining the sentence. Additionally, the court determined that the notional accumulation of sentences for multiple offences had been incorrectly calculated, leading to an overestimation of the sentence. The court also found that the trial judge's failure to provide adequate reasons for the sentence imposed was a significant error, as it hindered the court's ability to properly review the sentence. Consequently, the court allowed the appeal and remitted the matter to the County Court for resentencing.

The court ordered that the applicant be resentenced by the County Court, ensuring that the sentencing principles were correctly applied, the applicant's moral culpability and Bugmy factors were adequately considered, and the notional accumulation of sentences was accurately calculated. The court also directed the County Court to provide detailed reasons for the sentence imposed, ensuring transparency and clarity in the sentencing process.

Orders