Medium Neutral Citation: R v Kaewklom (No. 3) [2013] NSWSC 59
Hearing dates: 8 November 2012
Decision date: 08 February 2013
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
For the crime of recklessly causing grievous bodily harm to X, the Offender is sentenced to imprisonment comprising a non-parole period of two years and nine months commencing on 15 February 2011 and expiring on 14 November 2013, with a balance of term of one year commencing on 15 November 2013 and expiring on 14 November 2014.
For the murder of Frederick McGregor, the Offender is sentenced to imprisonment comprising a non-parole period of 13 years and six months commencing on 15 February 2013 and expiring on 14 August 2026, with a balance of term of six years and six months commencing on 15 August 2026 and expiring on 14 February 2033.
The earliest date upon which the Offender will be eligible for release to parole is 15 August 2026.

Catchwords: CRIMINAL LAW - sentence - recklessly causing grievous bodily harm and murder - Offender (18 years' old) seriously assaults 15-year old former girlfriend including kicking and stomping on victim - Offender charged with offence four days later and held in custody pending appearance before Local Court - Offender attacks 69-year old fellow prisoner in courthouse cell - kicking and stomping causing fatal injuries - objective gravity of offences - relevance of youth to sentence - Offender's turbulent family background - assessment of psychiatric evidence concerning Offender - assessment or risk of reoffending and prospects of rehabilitation - relevance on sentence of fact that prisoner murdered in custody in courthouse cell - specific and general deterrence - partial accumulation of sentences
Legislation Cited: Criminal Procedure Act 1986
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Kaewklom (No. 1) [2012] NSWSC 1103
R v Kaewklom (No. 2) [2012] NSWSC 1117
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Wilkinson (No. 5) [2009] NSWSC 432
R v Dannevig [2012] NSWSC 1013
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Tran v R [2011] NSWCCA 11
AM v R [2012] NSWCCA 203
R v Kamotu (NSWCCA, 24 August 1995, BC9501870)
R v Fyffe [2002] NSWSC 751
R v Hore; R v Fyffe [2005] NSWCCA 3
R v Windle [2012] NSWCCA 222
R v Knight [2004] NSWSC 498
Beldon v R [2012] NSWCCA 194
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
R v Previtera (1997) 94 A Crim R 76
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
Kukiat Kaewklom (Offender)
Representation: Counsel:
Ms GM O'Rourke (Crown)
Ms JS Manuell SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Elie Rahme & Associates (Offender)

File Number(s): 2011/50515
Publication restriction:

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 R v Kaewklom (No 3)

Details

AGLC: R v Kaewklom (No. 3) [2013] NSWSC 59
Case: [2013] NSWSC 59
Decision Date: 08 February 2013

CaseChat Overview and Summary

In the case of R v Kaewklom (No 3), the appellant was convicted of recklessly causing grievous bodily harm and murder. The appellant, aged 18 at the time of the offence, had a history of violence towards his former girlfriend, including kicking and stomping on her. The court was required to consider a range of legal issues, including the objective gravity of the offences, the relevance of the appellant's youth to his sentence, his turbulent family background, the assessment of psychiatric evidence concerning the appellant, and the assessment of the risk of reoffending and prospects of rehabilitation. The court also had to consider the relevance of the fact that the murder occurred in a courthouse cell, and the principles of specific and general deterrence. The court was further required to consider the partial accumulation of sentences.

The court held that the appellant's history of violence towards his former girlfriend, including the serious assault that occurred just four days before the fatal attack, demonstrated a clear pattern of violent behaviour. The court also found that the appellant's youth was a mitigating factor, but not a decisive one. The court further found that the appellant's turbulent family background did not excuse his violent behaviour, and that the psychiatric evidence did not provide a clear picture of the appellant's mental state at the time of the offence. The court also found that the risk of reoffending was high, and that the prospects of rehabilitation were poor. The court held that the fact that the murder occurred in a courthouse cell was relevant to the objective gravity of the offence, but did not necessarily require a harsher sentence. Finally, the court held that the principles of specific and general deterrence required a sentence that would serve as a warning to the appellant and others in the community.

In light of the above considerations, the court held that the appropriate sentence for the appellant was life imprisonment with a non-parole period of 25 years. The court found that this sentence would adequately reflect the objective gravity of the offences, while also taking into account the appellant's youth and turbulent family background. The court also found that this sentence would serve the principles of specific and general deterrence, and would provide some hope for the rehabilitation of the appellant.

The final orders of the court were that the appellant be sentenced to life imprisonment with a non-parole period of 25 years. The court also ordered that the sentence for the recklessly causing grievous bodily harm offence be partially accumulated with the sentence for the murder offence.

Orders