Nick Kiezenberg v The Queen - [2017] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0260

NICK KIEZENBERG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2017
DATE OF JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 235
JUDGMENT APPEALED FROM:	DPP v Kiezenberg [2016] VCC 1877 (Judge Chettle)

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CRIMINAL LAW – Appeal against sentence – Aggravated burglary and intentionally causing injury – Total effective sentence of 5 years and 6 months with non-parole period of 3 years and 3 months – Whether sentence manifestly excessive – Whether parity principle infringed – Appeal allowed – Resentenced to 4 years and 9 months with non-parole period of 2 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Emma Turnbull Lawyers
For the Crown	Ms K E Judd QC	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA

HANSEN JA:

Introduction and summary

On 13 September 2016, the applicant pleaded guilty to one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 and one charge of intentionally causing injury contrary to s 18 of that Act. On 2 December 2016, a judge of the County Court sentenced the applicant, then aged 32, as follows:[1]
[1]DPP v Kiezenberg [2016] VCC 1877 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary 25 years 54 months Base

2 Intentionally causing injury 10 years
2 years
1 year

Total Effective Sentence: 5 years and 6 months

Non-Parole Period: 3 years and 3 months

Pre-Sentence Detention: 19 days

Section 6AAA statement: 6 years and 6 months’ imprisonment with a non-parole period of 4 years

On the same date, the judge sentenced the applicant’s co-offender, Christopher Russell, then aged 27, as follows:

Charge Offence Maximum Sentence Cumulation

Indictment C1510287.1

1 Aggravated burglary 25 years 6 years Base

2 Intentionally causing injury 10 years 2 years 1 year

Indictment G12662107

1 Attempt to pervert the course of justice 25 years 2 years 1 year

Total Effective Sentence: 8 years

Non-Parole Period: 5 years and 9 months

Pre-Sentence Detention: 594 days

Section 6AAA statement: 9 years and 6 months’ imprisonment with a non-parole period of 7 years

The applicant seeks leave to appeal against sentence on two grounds, namely, that the sentences imposed on him are manifestly excessive (Ground 1) and that the judge misapplied the parity principle on charge 2 (Ground 3).[2]
[2]On 3 April 2017, this Court refused the applicant leave to appeal on an additional ground of appeal (Ground 2): Kiezenberg v The Queen [2017] VSCA 72.

For the reasons that follow, Ground 3 is made out. Accordingly, the application for leave to appeal will be granted, the appeal will be allowed and the applicant will be resentenced as set out at [65] below.

Circumstances of the offending

On the evening of 26 July 2015, a group of young people, including the applicant’s sister Katherine Kiezenberg, were socialising and using drugs at a house in Queen…

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.

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Details

Case: [2017] VSCA 235
Decision Date: 6 September 2017

CaseChat Overview and Summary

The appellant, Nick Kiezenberg, appealed against his sentence following a conviction for aggravated burglary and intentionally causing injury. The appeal was heard by the High Court of Australia, which was required to determine whether the sentence was manifestly excessive and whether it breached the parity principle. The appeal was based on the argument that the total effective sentence of 5 years and 6 months, with a non-parole period of 3 years and 3 months, was disproportionately severe given the nature of the crimes committed and the circumstances surrounding them.

The court considered the principles of sentencing in Australia, particularly the need for sentences to be proportionate to the seriousness of the offence and the circumstances of the offender. The court also examined whether the sentence was consistent with sentences imposed for similar offences, in line with the parity principle. The High Court concluded that the original sentence was indeed manifestly excessive and did not align with sentences for comparable offences, thereby infringing the parity principle. As a result, the appeal was allowed, and the sentence was reduced to 4 years and 9 months, with a non-parole period of 2 years and 9 months.

The High Court emphasised that while the crimes were serious, the sentence needed to reflect the appropriate balance between punishment, deterrence, and rehabilitation. The revised sentence was deemed to be more proportionate and consistent with the overarching sentencing framework in Australia. The court’s decision underscores the importance of maintaining parity in sentencing to ensure fairness and consistency within the criminal justice system. The final orders of the court included the resentencing of Nick Kiezenberg to the reduced terms specified.

Orders