Police v Kirk - [2024] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation: Police v Kirk [2024] NSWLC 1
Hearing dates: 30 May 2024
Date of orders: 30 May 2024
Decision date: 30 May 2024
Jurisdiction: Criminal
Before: Nash LCM
Decision:
(1) Application to reopen proceedings refused.
(2) Sentence imposed on 23 May 2024 confirmed.

Catchwords:
Crime – procedure – application to reopen sentencing proceedings – alleged sentencing error – offender serving existing sentence of imprisonment – whether further sentence of imprisonment is contrary to law – consideration of section 58 of the Crimes (Sentencing Procedure) Act 1999

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
R v Derbas [2004] NSWCCA 174
R v Perrin [2022] NSWCCA 170

Texts Cited:
Nil

Category: Procedural rulings
Parties: NSW Police (Prosecutor)
Alex Rennie Kirk (Defendant)
Representation: Counsel:
Jehane Ghabrial (Defendant)
Solicitors:
Sgt Nicholas Dobson (Prosecutor)
Mr Havas, First Choice Legal Services (Defendant)

File Number(s): 2024/00155793
Publication restriction: Nil

JUDGMENT

These are my ex-tempore reasons in this matter.
Mr Kirk has made an application to reopen criminal proceedings to correct an asserted sentencing error under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The application arises in circumstances where, on 23 May 2024, after he had entered guilty pleas, the court (Nash LCM) sentenced Mr Kirk for 2 offences (in proceedings no. H97112766), being sequences 3 and 5 (new sentence). Both matters involved the (deemed) supply of prohibited drugs under the Drug Misuse and Trafficking Act 1985 (NSW).
Under the new sentence, Mr Kirk, was sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate term of imprisonment of 8 months, commencing on 26 April 2024 (being the date he was arrested, charged and bail refused on the matter) and expiring on 25 December 2024, with a non-parole period of 6 months expiring on 25 October 2024. Mr Kirk has commenced an appeal to the District Court in respect of the new sentence, which I understand is listed for hearing on 17 July 2024.
The new sentence is to be understood in the context or background where Mr Kirk was, and is, serving an existing sentence of imprisonment that commenced on 5 July 2016 and expires on 2 January 2025 (existing sentence). By way of further particulars, on 14 December 2016, Mr Kirk was sentenced in the District Court to two terms of imprisonment: a period of 2 years from 5 July 2016 to 4 July 2018, with a non-parole period of 1 year and 2 months expiring 4 September 2017 (first sentence), and a concurrent fixed term of imprisonment of 6 months from 5 July 2016 to 4 January 2017 (second sentence).
On 3 July 2018, Mr Kirk was sentenced in the District Court to an aggregate sentence of imprisonment of 7 years from 3 January 2018 to 2 January 2025, with a non-parole period of 3 years and 6 months that expired…

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 Police v Kirk

Details

AGLC: Police v Kirk [2024] NSWLC 1
Case: [2024] NSWLC 1
Decision Date: 30 May 2024

CaseChat Overview and Summary

The case before the court was an application by the police to reopen sentencing proceedings against Kirk, who was already serving a sentence of imprisonment. Kirk sought to have the sentencing reopened on the basis that the court had made an error in imposing a further term of imprisonment. The application was heard in the Supreme Court of New South Wales. The court was required to determine whether the imposition of an additional sentence of imprisonment was lawful and whether there were any grounds for reopening the sentencing proceedings under section 58 of the Crimes (Sentencing Procedure) Act 1999.

In considering the application, the court noted that Kirk was already serving a term of imprisonment. The court further considered whether the imposition of an additional sentence was contrary to law, and whether there were any grounds under section 58 to justify reopening the sentencing proceedings. The court examined the principles of double jeopardy and the discretion of the court in imposing sentences. The court concluded that there was no error in the original sentencing that would warrant reopening the proceedings, and that the imposition of an additional sentence was not contrary to law. The court also found that there were no grounds under section 58 to reopen the proceedings.

The court dismissed the application to reopen the sentencing proceedings. The court confirmed the sentence imposed on 23 May 2024. The court held that the sentence was lawful and there were no grounds to alter or reopen the sentencing. The application was refused, and the sentence was confirmed as originally imposed.

Orders

Orders of the court

(1) Application to reopen proceedings refused.

(2) Sentence imposed on 23 May 2024 confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Police v Kirk [2024] NSWLC 1
Hearing dates:	30 May 2024
Date of orders:	30 May 2024
Decision date:	30 May 2024
Jurisdiction:	Criminal
Before:	Nash LCM
Decision:	(1) Application to reopen proceedings refused. (2) Sentence imposed on 23 May 2024 confirmed.
Catchwords:	Crime – procedure – application to reopen sentencing proceedings – alleged sentencing error – offender serving existing sentence of imprisonment – whether further sentence of imprisonment is contrary to law – consideration of section 58 of the Crimes (Sentencing Procedure) Act 1999
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	R v Derbas [2004] NSWCCA 174 R v Perrin [2022] NSWCCA 170
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	NSW Police (Prosecutor) Alex Rennie Kirk (Defendant)
Representation:	Counsel: Jehane Ghabrial (Defendant) Solicitors: Sgt Nicholas Dobson (Prosecutor) Mr Havas, First Choice Legal Services (Defendant)
File Number(s):	2024/00155793
Publication restriction:	Nil