R v Kay

Case [2004] NSWCCA 130 5 May 2004

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CITATION: R v Kay [2004] NSWCCA 130

HEARING DATE(S): 4 May 2004

JUDGMENT DATE:
5 May 2004

JUDGMENT OF: McColl JA at 1; Levine J at 38; Hidden J at 39

DECISION: Application for leave to appeal granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - SENTENCING - application for leave to appeal against severity of sentence - whether sentencing judge failed to allow a discount in sentence having regard to alleged delay in prosecution and steps towards rehabilitation in the interim - where delay attributable to applicant's failure to volunteer his guilt - whether such circumstances attract the principle in R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59.

LEGISLATION CITED: Crimes Act 1900 (NSW), s 112(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j), s 44(2)
Criminal Appeal Act 1912 (NSW), s 6(3)

CASES CITED: Mill v R (1988) 166 CLR 59
R v Abookahled (NSW Court of Criminal Appeal, 9 May 1991, unreported)
R v Todd [1982] 2 NSWLR 517

PARTIES :
Regina
Bradley Tristran Kay

FILE NUMBER(S): CCA 60062/04

COUNSEL: B J Knox SC (Crown)
P Hamill/S Flood (Applicant)

SOLICITORS: S Kavanagh (Crown)
Steve O'Connor, Legal Aid Commission of NSW (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0470

LOWER COURT
JUDICIAL OFFICER : Solomon DCJ

60062/04

McCOLL JA
LEVINE J
HIDDEN J

Wednesday, 5 May 2004

Regina v Bradley Tristran KAY

Judgment

1 McCOLL JA: This is an application for leave to appeal against the severity of a sentence imposed by Solomon DCJ on 30 July 2003 at the Sydney District Court. The applicant pleaded guilty to one charge of break, enter and steal (“the October 2001 offence”): s 112(1) Crimes Act 1900 (NSW). He was sentenced to imprisonment for two years and nine months to commence on 6 April 2003 and expire on 5 January 2006 with a non-parole period of one year and six months to commence on 6 April 2003 and expire on 5 October 2004.

2 The application for leave to appeal relies essentially upon one ground: that the sentencing judge failed adequately to take into account the discount the applicant ought to have been afforded having regard to the “significant delay” in his prosecution and the steps he had taken in the interim to rehabilitate himself.

The Facts

3 On 25 October 2001 the applicant broke into the Marrickville Metro Shopping Centre and forced his way into the City International Duty Free Store. Once inside he smashed a number of glass cabinets and stole ten digital cameras with a total value of $19,300. None of this property has been recovered. When police attended the scene they found drops of blood on one of the glass cabinets. Swabs were taken and sent for DNA testing. On 1 March 2002 while the applicant was in custody on another matter a DNA sample was obtained from him. It was matched to the original crime scene in January 2003. The applicant asserts (and the Crown does…

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 [2004] NSWCCA 130
Case: [2004] NSWCCA 130
Decision Date: 5 May 2004

CaseChat Overview and Summary

The case of R v Kay involved an application for leave to appeal against the severity of a sentence. The applicant, Kay, sought to argue that the sentencing judge failed to provide an appropriate discount in the sentence due to the delay in prosecution and his steps towards rehabilitation during the interim period. The delay in prosecution was largely attributable to the applicant's refusal to admit guilt. The case was heard in the court of appeal, which was tasked with determining whether the circumstances warranted a sentence adjustment in line with the principles established in R v Todd and Mill v R.

The primary legal issue before the court was whether the delay in prosecution and the applicant's steps towards rehabilitation were sufficient grounds for the sentencing judge to have applied a discount to the sentence. Specifically, the court needed to consider whether the principle in R v Todd, which suggests that a delay in prosecution may warrant a discount if it is not attributable to the accused, and the case of Mill v R, which extends this principle to include steps towards rehabilitation, applied in this instance. The court also had to determine whether the applicant's refusal to volunteer his guilt could negate the applicability of these principles.

The court concluded that the delay in prosecution and the steps towards rehabilitation were not sufficient grounds for a sentence discount. The court held that the principle in R v Todd and Mill v R could not be applied because the delay was largely due to the applicant's own failure to admit guilt. This failure to volunteer his guilt meant that the circumstances did not attract the principles outlined in those cases. Consequently, the court dismissed the application for leave to appeal and upheld the original sentence.

No additional orders were made beyond the dismissal of the application for leave to appeal against the severity of the sentence. The original sentence remained in place as determined by the sentencing judge.

Orders