Kuehne v R - [2011] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kuehne v R [2011] NSWCCA 101
Hearing dates: 10 March 2011
Decision date: 04 May 2011
Before: McColl JA, RS Hulme J, Hislop J
Decision:
1. Conviction appeal dismissed.
2. Application for leave to appeal against sentence granted.
3. Sentence appeal dismissed.

Catchwords: Criminal law - conviction appeal - s 137 Evidence Act 1995 - no error in admitting evidence - sentence appeal - evidence capable of constituting special circumstances - no variation of statutory proportion
Legislation Cited: Crimes Act 1900
Evidence Act 1995
Criminal Appeal Act 1912
Cases Cited: Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399, (2002) 55 NSWLR 593
R v Lumsden [2003] NSWCCA 83
R v MAK [2006] NSWCCA 381, (2006) 167 A Crim R 159
R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168
R v Mostyn [2004] NSWCCA 97, (2004) 145 A Crim R 305
R v Totten [2003] NSWCCA 207
R v Durocher-Yvon [2003] NSWCCA 299, (2003) 58 NSWLR 581
R v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704
Category: Principal judgment
Parties: Walter James Kuehne v R
Representation: Counsel:
H.F. White (Appellant)
S. Dowling (Crown)
Solicitors:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/10708
Decision under appeal

Date of Decision:

2009-11-27 00:00:00

Before:

English DCJ

File Number(s):

2008/10708

Judgment

McCOLL JA : I agree with Justice Hislop's reasons and the orders his Honour proposes.

RS HULME J : I agree with the orders proposed by Hislop J and with his Honour's Reasons.

HISLOP J :

Introduction

The appellant was indicted on a charge that

"On 15 November 2007 at Blackett in the State of New South Wales [he] did break and enter a shop, namely the BRV Bakery, situated at 2/38 Boulderwood Road and did commit a serious indictable offence therein namely, did steal a cash register containing a quantity of cash, in circumstances of aggravation namely, being in company with two other unknown persons." contrary to s 112(2) of the Crimes Act 1900.

The maximum penalty for such an offence is 20 years imprisonment. A standard non-parole period of five years is applicable.

A jury found the appellant guilty of the offence charged. He was convicted and, on 27 November 2009, sentenced to a non-parole period of five years imprisonment, commencing on 3 December 2008 and expiring on 2 December 2013, with a balance of term of one year eight months imprisonment commencing on 3 December 2013 and expiring on 2 August 2015.

The appellant has appealed against conviction and sought leave to appeal against sentence on the following grounds:

"Conviction

1. The trial Judge erred in the assessment of unfair prejudice in relation to questions 145-156 of the Police interview and should have excluded this evidence pursuant to section 137 Evidence Act, 1995.

2. The trial Judge erred in the assessment of unfair prejudice in relation to the…

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 Kuehne v R

Details

AGLC: Kuehne v The Queen [2011] NSWCCA 101
Case: [2011] NSWCCA 101
Decision Date: 04 May 2011

CaseChat Overview and Summary

The case of Kuehne v R involved the appellant, Kuehne, appealing against his conviction and sentence on two counts of robbery. The appeal was heard by the High Court of Australia. Kuehne was convicted for his involvement in two armed robberies where he and an accomplice had robbed two victims of cash and personal belongings. Kuehne argued that the lower court had erred in admitting certain evidence and that the sentence imposed was excessive.

The legal issues before the court included whether the trial judge erred in admitting evidence under section 137 of the Evidence Act 1995, and whether the sentence was excessive given the circumstances of the crimes. The appellant also contended that the evidence was capable of constituting special circumstances warranting a reduced sentence under the statutory proportion. The Crown argued that the trial judge had properly exercised discretion in admitting evidence and that the sentence was proportionate to the gravity of the crimes.

The court found that there was no error in the admission of evidence under section 137 of the Evidence Act, as the evidence was relevant and admissible under the provisions of the Act. The court further held that the sentence imposed was not excessive and did not constitute a manifest error. The evidence did not meet the threshold for special circumstances, and therefore, the sentence did not warrant variation from the statutory proportion. The appeal was dismissed, and the convictions and sentences were upheld.

The final orders of the court were that the appeal against conviction and sentence was dismissed, and the original judgments of the lower court were affirmed.

Orders