(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
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.
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Details
AGLC
R v Kay [2022] NSWDC 673
Case
[2022] NSWDC 673
Decision Date
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.