R v Kaewklom (No. 4) - [2013] NSWSC 504

Supreme Court

New South Wales

Medium Neutral Citation: R v Kaewklom (No. 4) [2013] NSWSC 504
Hearing dates: 3 May 2013
Decision date: 03 May 2013
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. The sentence passed on 8 February 2013 with respect to the offence of recklessly causing grievous bodily harm is set aside.
2. The Offender is convicted of the offence of recklessly causing grievous bodily harm on 10 February 2011.
3. For that offence, 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.

Catchwords: CRIMINAL LAW - sentence - application under s.43 Crimes (Sentencing Procedure) Act 1999 - committal for sentence for offence under s.33 Crimes Act 1900 - sentence proceedings transferred from District Court to Supreme Court to be linked with murder sentencing proceedings - parties proceed upon erroneous basis that committal for sentence for offence under s.35 Crimes Act 1900 - Offender sentenced for murder and s.35 offence - Crown application to reopen sentencing proceedings - common submission that sentence for s.35 offence was contrary to law - sentence reopened - fresh indictment presented - Crown accepts plea of guilty for s.35 offence - Offender sentenced according to law
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: R v Kaewklom (No. 3) [2013] NSWSC 59
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: ---

JUDGMENT

JOHNSON J: This is an application, initiated by the Crown, under s.43 Crimes (Sentencing Procedure) Act 1999 seeking to reopen sentence with respect to the Offender, Kukiat Kaewklom, for an offence under s.35(2) Crimes Act 1900 of recklessly causing grievous bodily harm.

On 8 February 2013, I sentenced the Offender with respect to an offence of murder and an offence under s.35(2) Crimes Act 1900: R v Kaewklom (No. 3) [2013] NSWSC 59. The circumstances in which the s.35(2) matter came to be before this Court were explained at [5]-[8] of my remarks on sentence of that day.

I sentenced the Offender for the s.35(2) offence to a term of 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.

A sentence of imprisonment for 20 years was imposed on the murder count with a commencement date of 15 February 2013, and with a non-parole period of 13 years and six months expiring on 14 August 2026.

The overall effect was that a period of two years' imprisonment was…

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. 4)

Details

AGLC: R v Kaewklom (No. 4) [2013] NSWSC 504
Case: [2013] NSWSC 504
Decision Date: 03 May 2013

CaseChat Overview and Summary

The case of R v Kaewklom (No. 4) involved the offender, Kaewklom, who was sentenced for murder and an offence under section 35 of the Crimes Act 1900. The committal for sentence for the section 35 offence was transferred from the District Court to the Supreme Court and linked with the murder sentencing proceedings. Both parties proceeded on the basis that the committal was for an offence under section 35 of the Crimes Act 1900, which was incorrect. The Crown subsequently applied to reopen the sentencing proceedings for the section 35 offence, submitting that the sentence was contrary to law. The offender was resentenced for the section 35 offence after a fresh indictment was presented, and the Crown accepted a plea of guilty.

The legal issues in this case were whether the sentence for the section 35 offence was contrary to law and whether the sentencing proceedings could be reopened. The court had to determine if the error in the basis of the committal proceedings affected the validity of the sentence and if the Crown's application to reopen the sentencing proceedings was appropriate. Additionally, the court needed to consider the correct procedure for resentencing the offender for the section 35 offence.

The court found that the sentence for the section 35 offence was indeed contrary to law due to the erroneous basis of the committal proceedings. The error in the basis of the committal proceedings did not affect the validity of the sentence for the murder offence. However, the court considered it appropriate to reopen the sentencing proceedings for the section 35 offence. After the resentencing, the Crown accepted the offender's plea of guilty for the section 35 offence, and the offender was sentenced according to law.

Orders