R v Kay

Case [2002] NSWCCA 286 24 July 2002

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Reported Decision:
(2002) 132 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION: Regina v Kay [2002] NSWCCA 286

FILE NUMBER(S): CCA 60564/01

HEARING DATE(S): 11 July 2002

JUDGMENT DATE:
24 July 2002

PARTIES :

Regina v Graham James Kay

JUDGMENT OF: Sheller JA at 1; Dowd J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70084/97

LOWER COURT JUDICIAL
OFFICER : Justice Hulme

COUNSEL : Applicant - R.J. Button
Crown - P.J. Power

SOLICITORS: Applicant - D.J. Humphreys
Crown - S.E. O'Connor

CATCHWORDS: Sentencing - appeal against sentence - four counts of aggravated sexual assault - four related sexual offences on a form 1 - manner in which the Form 1 offences were to be taken into account discussed - calculation of the discount for the utilitarian benefit of pleas of guilty discussed - appropriate approach to the determination of special circumstances discussed - whether despite errors of law some other sentences were warranted in law pursuant to subs 6(3) of the Criminal Appeal Act, 1912 considered.

LEGISLATION CITED: Crimes Act 1900 ss 61J, 61K
Crimes (Sentencing Procedure) Act 1999, ss 33, 48
Criminal Appeal Act 1912, subs 6(3)

CASES CITED:
Director of Public Prosecutions v Ottewell [1970] AC 642
Ibbs v The Queen (1987) 163 CLR 447
Pearce v The Queen (1998) 103 A Crim R 372
Power v The Queen (1973) 131 CLR 623
R v AEM Snr & Ors [2002] NSWCCA 58
R v Costen (1989) 11 Cr App R (S) 182
R v Dawson (unreported, CCA, 19/5/98)
R v Ellis (1986) 6 NSWLR 603
R v Harris [2001] NSWCCA 322
R v Kalache [2000] NSWCCA 2
R v Radich (1954) NZLR 86
R v Sharma [2002] NSWCCA 142
R v Simpson [2001] NSWCCA 534
R v Stabler (1984) 6 Cr App R (S) 129
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Winchester (1992) 50 A Crim R 345
Veen v The Queen [No 2] (1988) 164 CLR 465

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

60564/01

SHELLER JA
DOWD J
CARRUTHERS AJ
Wednesday, 24 July 2002

REGINA v Graham James KAY

Judgment

1 SHELLER JA: I agree with Carruthers AJ.

2 DOWD J I agree with Carruthers AJ.

3 CARRUTHERS AJ: Graham James Kay (the applicant) seeks leave to appeal against sentences imposed upon him by Hulme J in the Central Criminal Court, Sydney on 26 July 2000.

4 The applicant pleaded guilty on 1 March 1999 to an indictment containing four counts under s 61J of the Crimes Act 1900 (the Act) of aggravated sexual assault; the aggravation being threats to inflict actual bodily harm on the victim by means of an offensive weapon, namely a knife. The maximum penalty for this offence is twenty years imprisonment.

5 His Honour was also asked to take into account, in relation to the third count, four offences listed in a Form 1. Two of these offences…

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 [2002] NSWCCA 286
Case: [2002] NSWCCA 286
Decision Date: 24 July 2002

CaseChat Overview and Summary

In the case of R v Kay, the defendant was convicted on four counts of aggravated sexual assault and four related sexual offences on a form 1. The accused appealed against his sentence, raising multiple grounds of appeal, including the manner in which the form 1 offences were to be taken into account, the calculation of the discount for the utilitarian benefit of pleas of guilty, and the determination of special circumstances. The court was required to determine the appropriate sentence, considering these legal issues.

The legal issues before the court involved the correct application of sentencing principles. Firstly, the court had to decide how the form 1 offences should be considered in relation to the aggravated sexual assault charges. Secondly, the court needed to assess the discount for the utilitarian benefit of the defendant's pleas of guilty. Finally, the court had to determine if any special circumstances warranted further consideration in the sentencing process. The court was tasked with applying these principles to the facts of the case to arrive at a just and appropriate sentence.

In delivering its judgment, the court examined the legal principles applicable to the sentencing process. It found that the trial judge had made several errors in the application of the sentencing principles, including in the calculation of the discount for the pleas of guilty and in the consideration of special circumstances. Despite these errors, the court held that the sentences imposed were nevertheless warranted in law under the provisions of the Criminal Appeal Act, 1912. The court found that, despite the errors, the sentences imposed were appropriate and reflected the seriousness of the offences.

The court concluded that, while there were errors in the application of the sentencing principles, the sentences imposed by the trial judge were nevertheless warranted in law. The appeal was therefore dismissed, and the sentences originally imposed were upheld. The court's decision emphasised the importance of correctly applying sentencing principles, while also recognising that errors in the process do not necessarily lead to the need for a new sentence if the outcome is otherwise justified.

Orders