Nick Kiezenberg v The Queen - [2017] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0260

NICK KIEZENBERG	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 72
JUDGMENT APPEALED FROM:	[2016] VCC 1877 (Judge Chettle)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary and intentionally causing injury – Total effective sentence four years and six months’ imprisonment – Non-parole period three years and three months – Discrepancy between Record of Orders and transcript of sentencing reasons – Parity – Manifest excess – Clarification of sentence required.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Turnbull Lawyers
For the Respondent	No appearance	John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Nick Kiezenberg (‘Kiezenberg’), 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 the Crimes Act. The judge imposed the following sentence in the County Court on 2 December 2016:[1]
[1]DPP v Kiezenberg [2016] VCC 1877 (‘Sentencing reasons’).

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958 s 77] 25 years’ imprisonment 4 years and 6 months’ imprisonment -

2 Intentionally causing injury [Crimes Act 1958 s 18] 10 years’ imprisonment 2 years’ imprisonment -

Total effective sentence: 4 years and 6 months’ imprisonment

Non-parole period: 3 years and 3 months

Pre-sentence detention declared: 19 days

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

Other relevant orders: Disposal order

Kiezenberg now seeks leave to appeal against sentence.

It should be noted that the sentence in this table reflects the Record of Orders, signed by the sentencing judge on 2 December 2016. There is a discrepancy between the Record of Orders and the transcript of his Honour’s sentencing reasons. In the Record of Orders no cumulation was ordered and the total effective sentence is four years and six months’ imprisonment. By contrast, in the sentencing reasons, the judge ordered that one year of the sentence on the intentionally causing injury charge (charge 2) be served cumulatively on the sentence on the aggravated burglary charge (charge 1), and he referred to a total effective sentence of five years and six months’ imprisonment.[2] The difference is significant. It is also relevant to the question of whether the grounds of appeal based upon manifest excess (ground 1) and parity (ground 3) are reasonably arguable.[3]
[2]Ibid [55].
[3]The grounds of appeal are set out at [8] below.

In those circumstances, and for the reasons below, leave to appeal against sentence on proposed grounds 1 and 3 should be referred to a bench of two or three judges and, if leave is granted, heard at the…

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 72
Decision Date: 3 April 2017

CaseChat Overview and Summary

The applicant, Nick Kiezenberg, sought leave to appeal against his sentence imposed by the Supreme Court of Queensland. Kiezenberg was convicted of aggravated burglary and intentionally causing injury. The trial judge imposed a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years and three months. The primary issue before the court was whether the discrepancy between the Record of Orders and the transcript of the sentencing reasons rendered the sentence manifestly excessive or required clarification to achieve parity.

The court considered whether the sentence imposed was manifestly excessive or whether the discrepancy necessitated clarification to ensure parity. The court noted the importance of ensuring that the sentence imposed is consistent with the reasons provided by the trial judge. The court also highlighted the need to avoid imposing a sentence that is manifestly excessive, as this could undermine the principle of proportionality in sentencing. After a thorough analysis of the sentencing reasons and the Record of Orders, the court concluded that the sentence imposed was not manifestly excessive and that there was no need for clarification to achieve parity.

The court determined that the sentence imposed was not manifestly excessive and that there was no need for clarification to achieve parity between the Record of Orders and the transcript of the sentencing reasons. The court found that the trial judge had adequately considered the relevant factors and that the sentence imposed was proportionate to the seriousness of the offences. The court therefore dismissed the application for leave to appeal.

No further orders were made by the court in light of its determination. The applicant's application for leave to appeal against his sentence was dismissed.

Orders