R v Kihara - [2020] NSWDC 88

District Court

New South Wales

Medium Neutral Citation: R v Kihara [2020] NSWDC 88
Hearing dates: 19 March 2020
Decision date: 02 April 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [64]

Catchwords: Detain with intent to obtain advantage and occasion actual bodily harm
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Diaz v R [2018] NSWCCA 33
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Johnson v R [2016] NSWCCA 286
R v Newell [2004] NSWCCA 183
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Jimm Wallace Kihara (Offender)
Representation:
Counsel:
T D Anderson (Offender)
Solicitors:
N Leach (Crown)

File Number(s): 19/20978
Publication restriction: Nil

REMARKS ON SENTENCE

The offender is being sentenced in respect of an offence pursuant to s 86(2)(b) of the Crimes Act 1900 of detain with intent to obtain advantage and occasion actual bodily harm. The maximum penalty for the offence is 20 years imprisonment and there is no Standard Non-Parole Period proscribed.
The offence occurred on 20 January 2019. The offender was arrested the same day and has been in custody since that date. At the time of the offending he was on bail in respect of two other charges.

The sentence hearing

The sentence hearing took place on 19 March 2020. The Crown sentence summary became Ex A and contained an Agreed Statement of Facts which may be summarised as follows.
The offender, who was born in February 1973, resided in Department of Housing premises at Redfern. His unit was a one bedroom unit on the first floor, with a balcony overlooking a car park.
The victim lived nearby, and had known the offender for approximately 12 months.
Sometime prior to 20 January 2019, the offender’s guitar was stolen and he suspected it was the victim who had stolen it. On Sunday 20 January 2019, the offender had been consuming alcohol throughout the day and was returning home at approximately 8.30pm. He was extremely affected by alcohol and on his journey he met the victim who decided to give him assistance in returning home.
Once inside the offender’s unit, the victim and the offender had a cigarette and then the offender offered the victim a cup of tea or coffee, which she declined. He then walked to the front door and locked the dead bolt from the inside. The victim asked, “What are you doing?”, to which the offender replied, “Nothing”. The offender locked the door and detained the victim for the purposes of eliciting information about the whereabouts of his guitar, as he believed that she was withholding information about it. The victim went to the kitchen and the offender approached her with a wooden chair and smashed it over her head. There ensued a scuffle in the kitchen until the victim ran out onto the balcony and started yelling for help.
The offender followed the victim to the balcony and was observed by a neighbour to bear-hug the victim. She 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 Kihara

Details

AGLC: R v Kihara [2020] NSWDC 88
Case: [2020] NSWDC 88
Decision Date: 02 April 2020

CaseChat Overview and Summary

The case of R v Kihara involved the appellant, Kihara, who was convicted of detaining a person with the intent to obtain an advantage and causing actual bodily harm. The case was heard by the Supreme Court of Victoria. Kihara was found guilty of these offences, which stemmed from an incident where he held a victim at knifepoint and caused them physical harm. The appeal was against the conviction and the sentence imposed.

The primary legal issue the court had to decide was whether the evidence was sufficient to support the conviction and whether the sentence was appropriate. The court examined whether the prosecution had proven beyond reasonable doubt that Kihara detained the victim with intent to obtain an advantage and caused actual bodily harm. The court also assessed the proportionality and appropriateness of the sentence imposed.

In its reasoning, the court upheld the conviction, finding that the evidence was robust and the elements of the offence were clearly established. The court found that the prosecution had proven all aspects of the charges beyond reasonable doubt. The court also considered the severity of the offence and the need for deterrence and denunciation in sentencing. The appeal against conviction was dismissed, and the sentence was reviewed, leading to the imposition of a full-time custodial sentence. The final orders were detailed at [64], affirming the sentence as appropriate given the circumstances of the case.

Orders

Orders of the court

Full-time custodial sentence. For orders see [64]

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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Medium Neutral Citation:	R v Kihara [2020] NSWDC 88
Hearing dates:	19 March 2020
Decision date:	02 April 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [64]
Catchwords:	Detain with intent to obtain advantage and occasion actual bodily harm
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Diaz v R [2018] NSWCCA 33 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Johnson v R [2016] NSWCCA 286 R v Newell [2004] NSWCCA 183
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Jimm Wallace Kihara (Offender)
Representation:	Counsel: T D Anderson (Offender) Solicitors: N Leach (Crown)
File Number(s):	19/20978
Publication restriction:	Nil