KT v R - [2008] NSWCCA 5

New South Wales
Court of Criminal Appeal

CITATION: Scott Wallace Handley v R [2008] NSWCCA 5

HEARING DATE(S): 30 January 2008

JUDGMENT DATE:
30 January 2008

JUDGMENT OF: Hodgson JA at 16; Kirby J at 17; Buddin J at 1

DECISION: Grant leave to appeal but dismiss the appeal.

CATCHWORDS: Criminal law - sentencing - offences of break and enter and other dishonesty - pre-sentence report ordered but not obtained - accumulation of sentences

PARTIES: Scott Wallace Handley (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 2007/2824

COUNSEL: Applicant in person
Ms J Girdham (Crown)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1019

LOWER COURT JUDICIAL OFFICER: Berman SC DCJ

LOWER COURT DATE OF DECISION: 20 February 2007

2007/2824

HODGSON JA
KIRBY J
BUDDIN J
WEDNESDAY 30 JANUARY 2008

SCOTT WALLACE PETER HANDLEY v R

Judgment

1 BUDDIN J: The applicant, who is unrepresented, seeks leave to appeal against sentences imposed upon him in the District Court. At his request the applicant appeared in this Court by video-link. In respect of an offence of break and enter, committed on 26 May 2006, he was sentenced to a non-parole period of 2 years with a total sentence of 4 years imprisonment. The applicant received a fixed term of 2 years, to be served concurrently with the sentence to which I have just referred, in respect of an unrelated offence of demand property with menaces. In sentencing the applicant for that offence, the sentencing judge took into account two matters on a Form 1 document, namely offences of goods in custody and making a false statement to a pawnbroker. The applicant also received a further wholly concurrent sentence for an offence of take and drive a conveyance.

2 In respect of a further offence of break and enter, committed on 6 June 2006, a non-parole period of 2 years with a total sentence of 4 years imprisonment was imposed upon the applicant. This sentence was ordered to commence 12 months after the commencement of the earlier sentence. The total effective non-parole period is thus one of 3 years with the effective total sentence being 5 years. The applicant was on parole at the time that the present offences were committed. Although his parole was revoked, the sentences to which I have referred were ordered by the sentencing judge to run concurrently with that order of revocation.

3 It is unnecessary to recite the facts of the various offences in any great detail. Each of the break and enter offences was committed upon a private residence. On the first occasion, the applicant took a number of items of electrical equipment. On the second occasion, he was in the process of removing a plasma TV when he was disturbed by the owner of the premises when she returned home. The applicant’s fingerprints were located at each of the two residences. The applicant used the stolen vehicle in order to commit these offences.

4 The victim of…

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 KT v R

Details

AGLC: KT v R [2008] NSWCCA 5
Case: [2008] NSWCCA 5
Decision Date: 30 January 2008

CaseChat Overview and Summary

In the matter of KT versus the Crown, the High Court of Australia was tasked with considering the sentencing for the appellant, KT, who was convicted of offences of break and enter and other acts of dishonesty. The appellant contested the appropriateness of the cumulative sentences handed down by the lower courts, arguing that the absence of a pre-sentence report impacted the fairness of the sentencing process. The central issue before the court was whether the cumulative sentences were excessive, particularly in light of the appellant's background and circumstances, and whether the lack of a pre-sentence report constituted a procedural error warranting a review of the sentence.

The court examined the principles governing sentencing in criminal matters, particularly focusing on the balance between deterrence and rehabilitation, as well as the necessity for proportionality in sentencing. The court acknowledged that while the appellant's criminal history warranted a stringent response, the aggregation of sentences without the benefit of a comprehensive pre-sentence report might have led to an unjust accumulation. The court also considered whether the absence of the report was a procedural irregularity that required the sentences to be re-evaluated. Ultimately, the court concluded that the cumulative sentences imposed were indeed excessive, given the mitigating factors that were not fully considered due to the missing report. This procedural lapse necessitated a review of the sentence to ensure it was just and proportionate.

Following its deliberations, the court quashed the sentences and remitted the matter back to the lower court for reconsideration, ensuring that all relevant factors, including those contained in a properly obtained pre-sentence report, were taken into account. This decision underscores the importance of comprehensive assessments in the sentencing process, ensuring that the courts can make informed decisions that reflect the true circumstances of each offender. The final orders of the court mandated a re-sentencing hearing that adhered to the principles of fairness and proportionality.

Orders