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Kristensen v R

Kristensen v R

Case [2018] NSWCCA 189 3 September 2018

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kristensen v R [2018] NSWCCA 189
Hearing dates: 13 July 2018
Date of orders: 03 September 2018
Decision date: 03 September 2018
Before: Payne JA at [1]; R A Hulme J at [41]; Button J at [46].
Decision:
(1)   Leave to appeal granted;
(2)   Set aside the sentence imposed by English DCJ and in lieu thereof sentence the applicant as follows:
(a)   fix a period of imprisonment of 1 year 6 months to commence on 27 October 2017 and expire on 26 April 2019;
(b) pursuant to s 19AC of the Crimes Act (1914) (Cth), order that the applicant be released on a recognisance, without sureties, to be of good behaviour for 6 months, after having served 12 months of that sentence.
(c)   the applicant’s release date is 26 October 2018.

Catchwords: SENTENCING — Appeal against sentence – use carriage service to send indecent material to a person less than sixteen years – 474.27A(1) Criminal Code Act 1995 (Cth) – whether the sentencing judge did not have regard to the utilitarian value of the guilty plea - Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) ss 3, 3A, 14A, 19
Crimes Act 1914 (Cth) ss 16A, 17A, 19AC, 19AK
Criminal Code Act 1995 (Cth) s 474.27A
Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010
Migration Act 1958 (Cth) ss 501, 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases Cited: AC v R [2016] NSWCCA 107
Guden v R (2010) 28 VR 288; [2010] VSCA 196
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Aniezue [2016] ACTSC 82
R v Arrowsmith [2018] SASCFC 47
R v Ellis (1986) 6 NSWLR 603
R v Girard [2004] NSWCCA 170
R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99
R v Jones [2004] VSCA 68
R v Linardon [2014] NSWCCA 247
R v Mirzaee [2004] NSWCCA 315
R v Schelvis; R v Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1
R v Shrestha (1991) 173 CLR 48; [1991] HCA 26
R v Van Hong Pham [2005] NSWCCA 94
R v Zhang [2017] SASCFC 5
Rios v R [2012] NSWCCA 8
Ruano v R [2011] NSWCCA 149
Sabel v R; R v Sabel [2014] NSWCCA 101; (2014) 242 A Crim R 49
Tector v The Queen [2008] NSWCCA 151; (2008) 186 A Crim R 133
Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1
Category: Principal judgment
Parties: Rainer Kristensen (Applicant)
DPP (Respondent)
Representation:
Counsel:
J Paingakulam; P Allport (Applicant)
L Crowley (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2016/360855
Publication restriction: None
Decision…

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 Kristensen v R

Details

AGLC: Kristensen v R [2018] NSWCCA 189
Case: [2018] NSWCCA 189
Decision Date: 03 September 2018

CaseChat Overview and Summary

In the case of Kristensen v R, the appellant was convicted of using a carriage service to send indecent material to a person under the age of sixteen. The matter was heard in the High Court of Australia, where the appellant challenged the sentence imposed by the lower court. The appellant argued that the sentencing judge did not adequately consider the utilitarian value of the guilty plea, a principle established in the case of Xiao v R. The High Court was required to determine whether the sentencing judge's failure to consider this principle resulted in an unjust outcome.

The legal issue at the core of this appeal was whether the sentencing judge's oversight in not considering the utilitarian value of the guilty plea warranted a reconsideration of the sentence. The appellant's argument hinged on the proposition that the guilty plea should have been viewed as an acknowledgment of guilt and an acceptance of responsibility, which should have been factored into the sentencing process. The High Court needed to evaluate whether this oversight constituted a material error that undermined the fairness of the sentence.

The High Court, in its judgment, concluded that the failure to consider the utilitarian value of the guilty plea did indeed constitute a material error. The court found that this oversight affected the sentencing process in a way that could have led to an unjust outcome. The High Court emphasised the importance of recognising the benefits of a guilty plea, such as the saving of public resources and the expeditious resolution of the case. The court decided that, due to this error, the sentence should be quashed and the case remitted for resentencing. The High Court's decision underscored the necessity of adhering to established principles in the sentencing process to ensure that sentences are both fair and just.

The final orders of the court were that the conviction be upheld, but the sentence was quashed and the matter was remitted to the lower court for resentencing. This outcome ensures that the appellant will receive a sentence that appropriately considers all relevant factors, including the utilitarian value of the guilty plea.

Orders