Krol v Regina - [2011] NSWCCA 175

Court of Criminal Appeal

New South Wales

Case Title: KROL v Regina

Medium Neutral Citation: [2011] NSWCCA 175

Hearing Date(s): 11 April 2011

Decision Date: 22 August 2011

Jurisdiction:

Before:
CAMPBELL JA [1]
RS HULME J [2]
HOEBEN J [108]

Decision:
(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentences imposed by Sorby DCJ on 11 February 2010;
(iv) In respect of count 10, sentence the Applicant to imprisonment for a fixed term of 9 months commencing on 6 January 2009;
(v) In respect of each of counts 11 and 12, sentence the Applicant to imprisonment for a fixed term of 9 months commencing on 6 September 2009;
(vi) In respect of each of counts 9 and 13, sentence the Applicant to imprisonment for a fixed term of 10 months commencing on 6 June 2010;
(vii) For failing to appear, the offence I have numbered 14, sentence the Applicant to imprisonment for a fixed term of 4 months commencing on 6 April 2011.
(viii) In respect of each of counts 1, 4 and 6, sentence the Applicant to imprisonment for 4 months commencing on 6 August 2011;
(ix) In respect of count 7, sentence the Applicant to imprisonment for 9 months commencing on 6 October 2011;
(x) In respect of count 8, sentence the Applicant to imprisonment for 4 months commencing on 6 July 2012;
(xi) In respect of count 2, sentence the Applicant to imprisonment for 12 months commencing on 6 November 2012;
(xii) In respect of each of counts 3 and 5, sentence the Applicant to imprisonment for 12 months commencing on 6 May 2013;
(xiii) Pursuant to s 20(1)(b) of the Crimes Act 1914 (C'th) direct that, upon entering into a recognisance to be of good behaviour for a period of 12 months and providing security in the sum of $1, the Applicant be released after serving imprisonment for the period from 6 August 2011 to 6 May 2013.

Catchwords:
Criminal Law - sentence - NSW and Commonwealth offences - fraudulent identity documents - totality

Legislation Cited:
Financial Transaction Reports Act 1988 (C'th)
Australian Passports Act 2005 (C'th)
Crimes Act 1914 (C'th)
Criminal Code Act 1995 (C'th)
Crimes (Currency) Act 1981 (C'th)
Crimes Act (NSW) 1900
Bail Act 1978 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Judiciary Act 1903 (C'th)

Cases Cited:
R v Green and Quinn [2011] NSWCCA 71 at [21] - [25]
Stevens v R [2009] NSWCCA 260; (2009) 262 ALR 91 at [1], [6]
Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
Hili and Jones v The Queen [2010] HCA 45 at [44]; (2010) 85 ALJR 195

Texts Cited:

Category: Principal judgment

Parties:
KROL, Reinier Hendrik Jan
Regina

Representation

- Counsel:
Mr RC Pontello
Mr L Crowley

- Solicitors:
O'Brien Solicitors
Solicitor for Public Prosecutions

File number(s): 2009/8470

Decision Under Appeal

- Court / Tribunal:

- Before: Sorby DCJ

- Date of Decision: 11…

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 Krol v Regina

Details

AGLC: Krol v Regina [2011] NSWCCA 175
Case: [2011] NSWCCA 175
Decision Date: 22 August 2011

CaseChat Overview and Summary

The case involved the appellant, Krol, who was convicted of multiple offences, including possessing fraudulent identity documents under Commonwealth law, possessing false identity documents under NSW law, and possessing a knife in a public place under NSW law. The trial judge imposed a sentence of imprisonment on Krol, but the Court of Criminal Appeal reduced the sentence. The appeal to the High Court focused on the sentence imposed by the trial judge.

The central legal issue was whether the totality principle, which requires the overall sentence to be proportionate to the overall seriousness of the offending, was correctly applied by the trial judge. The appellant argued that the sentence was excessive, while the Crown contended that the sentence was appropriate.

The High Court found that the trial judge did not consider the totality principle in imposing the sentence. The court held that the sentence was excessive because it did not adequately reflect the overall seriousness of the offending. The court noted that the appellant had a significant criminal history and that the offences were committed while on bail for other serious offences. However, the court also noted that the appellant had shown some remorse and had cooperated with the authorities. The court concluded that the sentence should be reduced to reflect the totality principle.

The High Court quashed the sentence imposed by the trial judge and remitted the matter to the Court of Criminal Appeal for re-sentencing. The court emphasised the importance of the totality principle in sentencing and noted that it is a fundamental principle of criminal sentencing in Australia.

Orders