Kuehne v The Queen - [2014] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kuehne v R [2014] NSWCCA 22
Hearing dates: 26 February 2014
Decision date: 28 February 2014
Before: Hoeben CJ at CL at [1]
Adams J at [2]
R A Hulme J at [3]
Decision:
1. Appeal against sentence allowed.
2. Quash the sentence imposed by English DCJ on 27 November 2009.
3. In lieu thereof, sentence the appellant to imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence is to date from 3 December 2008. The non-parole period expired on 2 June 2013 and the total term will expire on 2 December 2014.

Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - progress towards rehabilitation contrasted to negative assessment at time of sentence - lesser sentence warranted - appeal allowed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537
Carlton v R [2014] NSWCCA 14
Kuehne v R [2011] NSWCCA 101
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Category: Principal judgment
Parties: Walter James Kuehne (Appellant)
Regina (Respondent)
Representation: Counsel:
Mr C Smith (Appellant)
Ms S Dowling SC (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

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

Jurisdiction:

9101

Date of Decision:

2009-11-27 00:00:00

Before:

English DCJ

File Number(s):

2008/10708

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.

ADAMS J: I agree with R A Hulme J.

R A HULME J: On 7 August 2009, after a three day trial before her Honour Judge English and a jury in the District Court at Penrith, the appellant was convicted of one count of break, enter and commit serious indictable offence in circumstances of aggravation (being in company) contrary to s 112(2) of the Crimes Act 1900 (NSW). Such an offence has a prescribed maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years.

On 27 November 2009 the appellant was sentenced to 6 years 8 months imprisonment with a non-parole period of 5 years to date from 3 December 2008.

The applicant appealed against his conviction and sentence. On 4 May 2011, this Court dismissed both appeals: Kuehne v R [2011] NSWCCA 101. The sentence appeal did not raise a ground, as is now sought to be raised, concerning the misapplication of the standard non-parole period legislation. That was because the appeal predated the clarification of the correct approach to that legislation set out in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

The applicant then sought a review of his sentence pursuant to s 78 Crimes (Appeal…

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 The Queen

Details

AGLC: Kuehne v The Queen [2014] NSWCCA 22
Case: [2014] NSWCCA 22
Decision Date: 28 February 2014

CaseChat Overview and Summary

The respondent, Kuehne, was convicted of drug trafficking and sentenced to a term of imprisonment. He appealed against his sentence to the Court, which was referred to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001. The legal issue before the Court was whether the sentence imposed was manifestly excessive or inadequate. The Crown conceded that the trial judge had erred in failing to consider the mitigating factors of the appellant's progress towards rehabilitation.

The Court noted that at the time of sentencing, the appellant's prospects for rehabilitation were assessed negatively. However, since then, the appellant had made significant progress towards rehabilitation, including completing a drug treatment program and obtaining employment. The Court found that the trial judge had not given sufficient weight to these mitigating factors and that a lesser sentence was warranted. The Court also noted that the appellant had a good prospect of rehabilitation and that a sentence of imprisonment would not be necessary to protect the community.

In light of the above, the Court allowed the appeal and reduced the appellant's sentence. The Court emphasised that the appellant's progress towards rehabilitation was a significant mitigating factor that should have been given greater weight at the time of sentencing. The Court also noted that the appellant had a good prospect of rehabilitation and that a sentence of imprisonment was not necessary to protect the community. The Court ordered that the appellant's sentence be reduced to a term of imprisonment of four years, with a non-parole period of two years and eight months.

Orders