Kutschera v The Queen - [2015] NSWCCA 73

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kutschera v R [2015] NSWCCA 73
Hearing dates: 20 April 2015
Decision date: 27 April 2015
Before: Hoeben CJ at CL at [1]
Hall J at [39]
R A Hulme J at [40]
Decision:
The application for an extension of time within which to apply for leave to appeal against sentence is granted.
Leave to appeal against sentence is granted.
The appeal against sentence is allowed.
The sentence imposed by Fullerton J on 28 November 2008 is quashed and in lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years to commence 21 July 2007 and to expire 20 July 2025, with a balance of term of 6 years expiring 20 July 2031.
Catchwords: CRIMINAL LAW – application for leave to appeal against sentence out of time – offence of murder – existence of “Muldrock error” conceded – extension of time should be allowed – need to re-sentence – availability of additional information to be taken into account on re-sentence – on re-sentence a lesser sentence warranted in law.
Legislation Cited: Criminal Appeal Act 1912 – s6(3)
Cases Cited: Abdul v R [2013] NSWCCA 247
Kentwell v The Queen [2014] HCA 37, 313 ALR 451
Kutschera v R [2010] NSWCCA 150
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
O’Grady v The Queen [2014] HCA 38
R v Hall [2001] NSWCCA 202
R v Michael Kutschera [2008] NSWSC 1271
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Michael Kutschera – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms R Burgess – Applicant
Mr K McKay – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public prosecutions – Respondent Crown

File Number(s): 2007/5907
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Michael Kutschera [2008] NSWSC 1271

Date of Decision:

28 November 2008

Before:

Fullerton J

File Number(s):

2007/5907

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was found guilty by a jury of the murder of Lukas Gleeson (the deceased) at Muswellbrook on 21 July 2007. On 28 November 2008 Fullerton J sentenced him to imprisonment with a non-parole period of 20 years, commencing 21 July 2007 and expiring 20 July 2027, with a balance of term of 6 years and 8 months. An appeal against conviction (Kutschera v R [2010] NSWCCA 150) was dismissed.

The applicant seeks to apply for leave to appeal out of time against the severity of his sentence on the following ground:

Ground 1 – Her Honour erred in her approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

Application for leave to appeal out of time

The decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 was handed down on 5 October…

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 Kutschera v The Queen

Details

AGLC: Kutschera v The Queen [2015] NSWCCA 73
Case: [2015] NSWCCA 73
Decision Date: 27 April 2015

CaseChat Overview and Summary

In the matter of Kutschera versus The Queen, the appellant sought leave to appeal against his sentence, which was imposed out of time. The appellant was convicted of murder, and his appeal was centred on the recognition of a "Muldrock error" in the original sentencing process. The High Court of Australia was the tribunal tasked with determining the merits of this application.

The central legal issue before the Court was whether the appellant's application for leave to appeal against his sentence, lodged out of time, should be granted. This hinged on whether the recognised "Muldrock error" warranted an extension of the time limit for the appeal, and if so, whether the appellant should be re-sentenced in light of the additional information available at the time of the appeal. The Court also needed to consider whether a lesser sentence would be appropriate in law upon re-sentencing.

The Court found that the appellant's application for leave to appeal should be granted due to the existence of the "Muldrock error." This error was deemed significant enough to warrant an extension of the time limit for the appeal. Furthermore, the Court held that upon re-sentencing, the appellant should be considered in light of the additional information available at the time of the appeal. This information led the Court to conclude that a lesser sentence was warranted in law, reflecting a more accurate assessment of the appellant's culpability and the circumstances of the offence.

As a result of the Court's reasoning, it was ordered that the appellant be granted leave to appeal against his sentence out of time. The case was remitted to the original sentencing court for re-sentencing, taking into account the additional information available at the time of the appeal. The Court directed that the re-sentencing should result in a sentence that was lesser than the original sentence, reflecting the appropriate punishment in light of the new information and the recognised error.

Orders