KW v R (No 2) - [2013] NSWCCA 84

Court of Criminal Appeal

New South Wales

Case Title: KW v R (No 2)

Medium Neutral Citation: [2013] NSWCCA 84

Hearing Date(s): On the papers

Decision Date: 22 April 2013

Before: Simpson J at [1]; Harrison J at [10]; Adamson J at [11]

Decision:
(i) Order 3 made on 19 February 2013 set aside.

(ii) In lieu thereof the applicant is sentenced as follows:

Count (v): imprisonment for 3 years and 9 months, commencing on 7 April 2010 and expiring on 6 January 2014, with a non-parole period of 2 years and 6 months, expiring on 6 October 2012;

Counts (ii)-(iv): imprisonment for a fixed term of 1 year and 6 months, commencing on 7 October 2010 and expiring on 6 April 2012;

Count (i): imprisonment for 5 years and 6 months, commencing on 7 April 2011 and expiring on 6 October 2016, with a non-parole period of 3 years and 5 months, expiring on 6 September 2014.

Catchwords: CRIMINAL LAW - appeal - sentencing - sexual offences - error found in sentencing - applicant re-sentenced KW v R [2013] NSWCCA 31 - error in re-sentencing - aggregate sentence failed to give effect to finding of special circumstances - Crown application for variation of orders - Criminal Appeal Rules r 50C - orders made on 19 February 2013 varied - applicant re-sentenced

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules

Cases Cited: KW v R [2013] NSWCCA 31

Category: Consequential orders

Parties: KW (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
J Stratton SC (Applicant)
H Wilson (Respondent)

- Solicitors: Solicitors:
Bannister Lawyers (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2009/148645

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Hosking DCJ

- Date of Decision: 09 March 2011

- Court File Number(s): 2009/148645

Publication Restriction: Non publication of any information or material that may lead to the identification of the victims (s 15A Children (Criminal Proceedings) Act 1987)

JUDGMENT

On 19 February 2013 judgment was delivered in this Court in respect of an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 9 March 2011 in respect of five separate offences: KW v R [2013] NSWCCA 31. The relevant facts are there fully set out. Leave to appeal was granted, the appeal allowed and the applicant re-sentenced. The aggregate sentence then imposed was of a head sentence of 6 years and 6 months commencing on 7 April 2010 with a non-parole period of 5 years and 3 months which would expire on 6 July 2015.
The Crown has drawn attention to a discrepancy in the judgment and the orders. At [43] the Court indicated its intention of giving the applicant the benefit of a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Section 44(2) provides:
"The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless…

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 KW v R (No 2)

Details

AGLC: KW v R (No 2) [2013] NSWCCA 84
Case: [2013] NSWCCA 84
Decision Date: 22 April 2013

CaseChat Overview and Summary

KW was the appellant in an appeal against sentencing in a matter involving serious sexual offences. The appeal was heard by the New South Wales Court of Criminal Appeal. The respondent was the Crown, represented by the Director of Public Prosecutions. The appellant was appealing his sentence, arguing that it was excessive and that there had been an error in the re-sentencing process.

The central issue before the court was whether the sentence imposed on the appellant adequately reflected the findings of special circumstances in relation to the crimes committed. The appellant contended that the aggregate sentence imposed did not give proper effect to these findings. The Crown, on the other hand, argued that the sentence was appropriate and that no error had been made in the re-sentencing process.

The court found that an error had indeed been made in the re-sentencing process, in that the aggregate sentence imposed did not properly reflect the findings of special circumstances. The court held that the sentence needed to be varied to give effect to these findings. Consequently, the Crown's application for variation of the orders under the Criminal Appeal Rules was successful. The orders made on 19 February 2013 were varied, and the appellant was re-sentenced by the court.

The court's final orders included the variation of the orders made on 19 February 2013 and the re-sentencing of the appellant, KW, to ensure that the aggregate sentence properly reflected the findings of special circumstances in relation to the crimes committed.

Orders