CRIME — appeals — appeal against sentence — manifest excess — where applicant challenged aggregate sentence on ground that indicative sentence was manifestly excessive — where applicant did not submit that aggregate sentence was manifestly excessive — where patent error was not alleged — whether alleged manifestly excessive indicative sentence caused sentencing discretion to miscarry — whether Court could re-exercise sentencing discretion on such basis
Counsel: S Odgers SC (Applicant) G Newton SC (Respondent)
Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):
2021/266751
Publication restriction:
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), the publication or broadcasting or dissemination of any material that identifies or is likely to lead to the identification of the applicant, the applicant’s parents, the applicant’s siblings and any young person in connection with these proceedings is prohibited.
[This headnote is not to be read as part of the judgment]
KS (the applicant) pleaded guilty in the Children’s Court of New South Wales to one charge of murder and one charge of causing grievous bodily harm with intent…
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.
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Details
AGLC
KS v The King [2024] NSWCCA 158
Case
[2024] NSWCCA 147
Decision Date
CaseChat Overview and Summary
In the case of KS v The King, the applicant, KS, appealed against the aggregate sentence imposed upon him. The applicant was convicted of multiple criminal offences and sentenced to a total of eight years imprisonment. The appeal centred around the contention that the aggregate sentence was manifestly excessive. The High Court of Australia was tasked with determining whether the aggregate sentence constituted a manifest excess and whether the court could re-exercise its sentencing discretion on this basis.
The primary legal issue for the Court was whether the aggregate sentence imposed on KS was manifestly excessive, given that the applicant did not specifically submit that the aggregate sentence itself was manifestly excessive. The Court was also required to decide whether an alleged manifestly excessive indicative sentence could be considered to have caused the sentencing discretion to miscarry, thereby allowing the Court to re-exercise its discretion. The Court considered whether the sentencing judge had failed to properly exercise their discretion due to an error in the indicative sentence, and whether this constituted a basis for re-exercising the discretion.
The Court found that the aggregate sentence was not manifestly excessive, as the applicant had not argued that the aggregate sentence itself was excessive. The Court emphasised that the sentencing judge had properly considered all relevant factors in imposing the sentence. The Court also determined that an alleged error in the indicative sentence did not constitute a basis for re-exercising the sentencing discretion. The Court held that the sentencing judge had not miscarried in their discretion due to the alleged error in the indicative sentence. Consequently, the appeal was dismissed.
The Court did not make any orders altering the sentence. The Court upheld the original sentence imposed by the lower court.