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Kutchera v R

Kutchera v R

Case [2007] NSWCCA 121 4 May 2007

Appeal

Sentencing

Error of Law

Unconscionable Conduct

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: KUTCHERA v REGINA [2007] NSWCCA 121

HEARING DATE(S): 24/04/07

JUDGMENT DATE:
4 May 2007

JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 50

DECISION: (i) leave to appeal be granted; (ii) appeal be granted in part; (iii) the sentence imposed by his Honour Marien DCJ be confirmed save and except that the execution of the whole of the sentence be suspended until 5 June 2008 and that the applicant be released from custody on condition that he enter into a good behaviour bond for a term expiring on 5 June 2008.

CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL – error of law to preclude capacity to suspend sentence – aberrant behaviour – absence of damage to any person or property – significant subjective factors – appeal granted – imprisonment suspended.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: De Simoni (1981) 147 CLR 383
Dinsdale v The Queen (2000) 202 CLR 321
GAS v The Queen (2004) 217 CLR 198
House v The King (1936) 55 CLR 499
Johnson v The Queen (2004) 78 ALJR 616
Markarian v The Queen (2005) 79 ALJR 1048
R v Boulghourgian (2001) 125 A Crim R 540
R v Mill (1988) 166 CLR 59
R v Simpson (2001) 53 NSWLR 704
R v Todd [1982] 2 NSWLR 517
R v Zamagias [2002] NSWCCA 17

PARTIES: Samuel KUTCHERA (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/845

COUNSEL: Self (Applicant)
V. Lydiard (Respondent)

SOLICITORS: Self (Applicant)
S. Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0719

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 06/12/06

2007/845

JAMES J
ROTHMAN J
HARRISON J
4 May 2007

Samuel KUTCHERA v REGINA

Judgment

1 JAMES J: I agree with Rothman J.

2 ROTHMAN J: The applicant, Samuel Kutchera, appeals against the sentence imposed upon him by his Honour Judge Marien SC on 6 December 2006.

3 The applicant was sentenced to a term of imprisonment being a non-parole period of nine months to commence on 6 December 2006 and to expire on 5 September 2007 and a balance of term of nine months to commence on 6 September 2007 and expire on 5 June 2008.

4 That sentence was imposed on the applicant after a plea of guilty to an offence under section 178BA(1) of the Crimes Act 1900 (NSW) namely obtain valuable thing by deception the date of offence being 27 October 2004. The applicant had been on bail between 14 April 2005, the date he was charged, and the date of his sentence. The applicant, who was represented before Marien DCJ but was unrepresented before this Court seeks to appeal on two grounds. They are:

“(i) no pre-sentence report ordered to consider other sentencing alternatives;

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 Kutchera v R

Details

AGLC: Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121
Case: [2007] NSWCCA 121
Decision Date: 4 May 2007

CaseChat Overview and Summary

The case of Kutchera v R was heard in a court of appeal in Australia, where the appellant, Kutchera, sought to challenge the sentence imposed upon him by a lower court. The primary issue was whether the lower court had erred in law when it imposed a custodial sentence instead of a suspended sentence, considering the appellant's aberrant behaviour that did not result in any damage to any person or property. The appeal hinged on whether the lower court had failed to take into account significant subjective factors that would have justified a suspended sentence.

The court was tasked with determining whether the lower court had committed an error of law that would preclude its capacity to suspend the sentence. This involved assessing whether the lower court had appropriately considered the absence of physical harm or damage to property in the appellant's actions. The appeal also required the court to examine whether the subjective factors presented by the appellant, such as his background and personal circumstances, were sufficiently compelling to warrant a suspended sentence.

In its reasoning, the court found that the lower court had indeed erred in not adequately considering the absence of harm or damage to property in the appellant's actions. The court recognised the significance of the subjective factors presented and held that these were substantial enough to justify a suspended sentence. Consequently, the appeal was allowed, and the original custodial sentence was set aside in favour of a suspended sentence. The court concluded that the lower court's failure to properly account for these factors amounted to a material error of law.

Orders