R v Kay

Case [2022] NSWDC 673 2 December 2022

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District Court

New South Wales

Case Name:	R v Kay
Medium Neutral Citation:	[2022] NSWDC 673
Hearing Date(s):	8 November 2022
Date of Orders:	2 December 2022
Decision Date:	2 December 2022
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	(1) The appeal is allowed. (2) The convictions are confirmed. (3) The Local Court sentence is quashed. (4) Aggregate sentence imposed of two years and six months with a Non-Parole Period of one year and eight months.
Catchwords:	CRIME — appeals — Crown appeal against sentence — re-sentence — violent offences — stalking or intimidation — sexual touch without consent SENTENCING — Crown appeal against inadequacy of sentence — Manifest inadequacy
Legislation Cited:	Crimes (Appeal and Review) Act 2020 (NSW), ss 27, 23(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1) Crimes Act 1900 (NSW), s 61KC(a) Criminal Appeal Act 1912 (NSW) ss 44, 5D
Cases Cited:	Arnold v R NSWCCA 150 Calhoun (a pseudonym) v R [2018] NSWCCA 150 CMB v Attorney-General (NSW) [2015] HCA 9 Collier v R [2012] NSWCCA 313 Dinsdale v The Queen [2000] 202 CLR 321 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 DK v Director of Public Prosecutions [2021] NSWCCA 134 GWM v R [2012] NSWCCA 240 Hay v DPP [2020] NSWCCA 75 Hudson v R [2007] NSWCCA 302 Jackson v R [2010] NSWCCA 162 Lonsdale v R [2020] NSWCCA 267 Markarian v The Queen [2005] HCA 25 R v Cattell [2019] NSWCCA 297 R v Ceissman [2004] NSWCCA 466 at [25] R v Fidow [2004] NSWCCA 172 R v Hernando [2002] NSWCCA 489 R v Kaliti [2001] NSWCCA 268 R v Kama [2000] NSWCCA 23 R v Liberti (1991) 55 A Crim R 120 R v Merin [2007] NSWCCA 255 R v Newman [2022] NSWCCA 218 Simpson (2001) 53 NSWLR 704 Spark v R [2012] NSWCCA 140 State of New South Wales v Kay [2018] NSWSC 1235
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) (Appellant) Graham James Kay (Respondent)
Representation:	Counsel: Sfinas (Appellant) Cook (Respondent) Solicitors: Director of Public Prosecutions (Appellant) Hugo Law Group (Respondent)
File Number(s):	DC 2022/00005719
Publication Restriction:	NIL
Decision under appeal:
Court or Tribunal:	Local Court
Jurisdiction:	Criminal
Date of Decision:	5 May 2022
Before:	Reiss LCM
File Number(s):	2022/5719

JUDGMENT

This is an appeal brought on 23 June 2022 by the Director of Public Prosecutions pursuant to s 23(1) of the Crimes (Appeal and Review) Act 2020 (NSW) (CARA) against a sentence imposed in the Local Court on 5 May 2022 sentencing the Respondent, by wholly concurrent sentences, to a total term of imprisonment of two years with a non-parole period of 12 months in respect of two offences constituted as follows:
(1)Sequence 1, sexually touching another person without consent pursuant to s 61KC(a) of the Crimes Act 1900 (NSW), which I have referred to in these reasons as "the touching offence", for which he received a sentence at the jurisdictional maximum…

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 Kay

Details

AGLC: R v Kay [2022] NSWDC 673
Case: [2022] NSWDC 673
Decision Date: 2 December 2022

CaseChat Overview and Summary

In the case of R v Kay, the appellant was convicted in the Local Court of multiple offences, including stalking, intimidation, and sexual touch without consent. The Crown, dissatisfied with the sentence imposed, appealed to the higher court arguing the original sentence was manifestly inadequate. The nature of the offences and the sentence imposed by the Local Court were the primary focus of the appeal.

The legal issues before the court were whether the original sentence was manifestly inadequate and whether the appropriate course was to impose a new sentence. The Crown contended that the original sentence did not adequately reflect the seriousness of the crimes or serve as a sufficient deterrent. The appellant argued that the original sentence was appropriate and that the appeal should be dismissed.

The court considered the nature and seriousness of the offences, including the impact on the victim, the appellant's criminal history, and the need for deterrence and rehabilitation. The court found that the original sentence did not adequately address the severity of the crimes or serve as an effective deterrent. Consequently, the appeal was allowed, the convictions were confirmed, and the Local Court sentence was quashed. A new aggregate sentence of two years and six months imprisonment with a Non-Parole Period of one year and eight months was imposed.

Orders

Orders of the court

(1) The appeal is allowed.

(2) The convictions are confirmed.

(3) The Local Court sentence is quashed.

(4) Aggregate sentence imposed of two years and six months with a Non-Parole Period of one year and eight months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Kay [2022] NSWDC 673

Cases Citing This Decision

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Cases Cited

R v Newman [2022] NSWCCA 218
Citation 1 (Para 5)

…In R v Newman [2022] NSWCCA 218 the ratio of 54.5% was said to incorporate a significant degree of leniency but not in error, although it was noted that it was not a Crown appeal and that that point was not taken.   …
Vinaisi v The Queen [2021] NSWCCA 134
Citation 2 (Para 2)

…RA. To enliven the court's power to vary the sentence the prosecution must establish error. I have had regard to DK v Director of Public Prosecutions [2021] NSWCCA 134 (“ DK ”).…
Lonsdale v R [2020] NSWCCA 267
Citation 3 (Para 19)

…The most recent consideration in GWM has been in Lonsdale v R [2020] NSWCCA 267.  In that case the sentencing Judge refused to find special circumstances because his Honour was not satisfied that an extended period on parole would promote rehabilitation.  His Honour was not prepared to extend the parole period in th…
Andary v The Queen [2020] NSWCCA 75
Citation 4 (Para 5)

…e his Honour's reasoning in arriving at the ultimate sentence, in order to discern whether it was infected with error. I have had regard to Hay v DPP [2020] NSWCCA 75. This case similarly involves a brief ex-tempore judgment after oral submissions were made and where it is apparent that the Magistrate was relying u…
R v Cattell [2019] NSWCCA 297
Citation 5 (Para 4)

…In the Crown appeal of R v Cattell [2019] NSWCCA 297 the Respondent received a statutory ratio of 30%; extremely low on any view.  The Respondent was 79 when sentenced and 81 years old at the time of his appeal.  In finding special circumstances the sentencing Judge considered the Respondent’s age and his prospects…
State of New South Wales v Kay [2018] NSWSC 1235
Citation 6 (Para 11)

….  Those matters speak against him benefiting from an Extended Supervision Order on parole.   [20] State of New South Wales v Kay [2018] NSWSC 1235 at [7].…
Calhoun (a pseudonym) v R [2018] NSWCCA 150
Citation 7 (Para 20)

…ccumulation of a sentence upon a pre-existing sentence may constitute special circumstances: Spark v R [2012] NSWCCA 140; Calhoun (a pseudonym) v R [2018] NSWCCA 150 (“ Calhoun ”).   …
CMB v Attorney-General (NSW) [2015] HCA 9
Citation 8 (Para 7)

…There is no onus on the Respondent to demonstrate that the Crown appeal should be dismissed. I have had regard to CMB v Attorney-General (NSW) [2015] HCA 9 citing R v Hernando [2002] NSWCCA 489. It is for the Appellant to establish appellable error in the sentencing decision and to negate any reason why the res…
R v GWM [2012] NSWCCA 240
Citation 9 (Para 6)

…In GWM v R [2012] NSWCCA 240 the ratio slightly exceeded 50%.  It was regarded as a very significant variation and one which was ultimately disproportionate to the subjective features of the Respondent in that case. …
Spark v R [2012] NSWCCA 140
Citation 10 (Para 20)

…ce for the stalking and touching offences.  Accumulation of a sentence upon a pre-existing sentence may constitute special circumstances: Spark v R [2012] NSWCCA 140; Calhoun (a pseudonym) v R [2018] NSWCCA 150 (“ Calhoun ”).   …
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 11 (Para 6)

…withstanding that the sentence under appeal was erroneously lenient. In that respect I have had regard to DK and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.…
Arnold v R [2011] NSWCCA 150
Citation 12 (Para 7)

…)The subjective case of the offender more generally: R v Simpson (2001) 53 NSWLR 704 (“ Simpson ”); (2)Rehabilitation of the offender: Arnold v R [2011] NSWCCA 150; (3)The risk of institutionalisation: Jackson v R [2010] NSWCCA 162; and (4)Age: Hudson v R [2007] NSWCCA 302.   …
Jackson v R [2010] NSWCCA 162
Citation 13 (Para 7)

…01) 53 NSWLR 704 (“ Simpson ”); (2)Rehabilitation of the offender: Arnold v R [2011] NSWCCA 150; (3)The risk of institutionalisation: Jackson v R [2010] NSWCCA 162; and (4)Age: Hudson v R [2007] NSWCCA 302.   …
Hudson v Regina [2007] NSWCCA 302
Citation 14 (Para 7)

…itation of the offender: Arnold v R [2011] NSWCCA 150; (3)The risk of institutionalisation: Jackson v R [2010] NSWCCA 162; and (4)Age: Hudson v R [2007] NSWCCA 302.   …
R v Merrin [2007] NSWCCA 255
Citation 15 (Para 1)

…ny risk of any institutionalisation.  What is ultimately required is to give due regard to the total criminality before the Court: R v Merin  [2007] NSWCCA 255.  …
Markarian v The Queen [2005] HCA 25
Citation 16 (Para 8)

…o Dinsdale v The Queen [2000] 202 CLR 321 (“ Dinsdale” ). Indeed, there is no single correct sentence. I have had regard to Markarian v The Queen [2005] HCA 25 (“ Markarian” ).…
R v Ceissman [2004] NSWCCA 466
Citation 17 (Para 18)

…n-parole period itself demonstrated that disproportionate weight had been given to the subjective circumstance of the respondent: citing R v Ceissman [2004] NSWCCA 466 at [25].    [19] At [119].…
R v Fidow [2004] NSWCCA 172
Citation 18 (Para 9)

…In R v Fidow [2004] NSWCCA 172 (“ Fidow ”) it was held that whilst the Court in Simpson identified a wide range of factors capable of constituting special circumstances, nevertheless it is necessary for the sentencing judge to make a decision, as noted in Simpson , that the circumstances are sufficiently special for…
R v Hernando [2002] NSWCCA 489
Citation 19 (Para 7)

…spondent to demonstrate that the Crown appeal should be dismissed. I have had regard to CMB v Attorney-General (NSW) [2015] HCA 9 citing R v Hernando [2002] NSWCCA 489. It is for the Appellant to establish appellable error in the sentencing decision and to negate any reason why the residual discretion not to interfe…
R v Kaliti [2001] NSWCCA 268
Citation 20 (Para 8)

…The Court in GWM had regard to R v Kaliti [2001] NSWCCA 268 (“ Kaliti ”) and R v Kama [2000] NSWCCA 23 (“ Kama ”).  It was observed as an additional matter by Howie J in Kaliti that the reduction in the non-parole period must be purposeful, other than relieving an offender of the burden of serving a minimum sentence…
Dinsdale v The Queen [2000] HCA 54
Citation 21 (Para 8)

…intervene if the sentence is so disproportionate to the relevant matters that error can be inferred. I have had regard to Dinsdale v The Queen [2000] 202 CLR 321 (“ Dinsdale” ). Indeed, there is no single correct sentence. I have had regard to Markarian v The Queen [2005] HCA 25 (“ Markarian” ).…
R v Kama [2000] NSWCCA 23
Citation 22 (Para 8)

…The Court in GWM had regard to R v Kaliti [2001] NSWCCA 268 (“ Kaliti ”) and R v Kama [2000] NSWCCA 23 (“ Kama ”).  It was observed as an additional matter by Howie J in Kaliti that the reduction in the non-parole period must be purposeful, other than relieving an offender of the burden of serving a minimum sentenc…
Regina v Simpson [1999] NSWCCA 367
Citation 23 (Para 7)

…l to justify a variation in the ratio, those circumstances can relevantly include: (1)The subjective case of the offender more generally: R v Simpson (2001) 53 NSWLR 704 (“ Simpson ”); (2)Rehabilitation of the offender: Arnold v R [2011] NSWCCA 150; (3)The risk of institutionalisation: Jackson v R [2010] NSWCCA 162; a…
Collier v R [2012] NSWCCA 313
Citation 24 (Para 13)

…it from an extended period of supervision within the community, a finding of special circumstances may be appropriate.[16]   [16] Collier v R [2012] NSWCCA 313.…

Legislation Cited

Criminal Appeal Act 1912 (NSW) 44, 5D
3 mentions (from Para 4)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) 13(1)
2 mentions (from Para 1)
Crimes Act 1900 (ACT) 61KC(a)
2 mentions (from Para 1)
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW) 5(1)
1 mention