R v Killick - [2002] NSWCCA 54

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Killick [2002] NSWCCA 54

FILE NUMBER(S):
60864/00

HEARING DATE(S): 4 March 2002

JUDGMENT DATE: 04/03/2002

PARTIES:
Regina v John Reginald Killick

JUDGMENT OF: O'Keefe J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0679

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

COUNSEL:
(A) In Person
(C) W G Dawe QC

SOLICITORS:
(A) In Person
(C) S E O'Connor

CATCHWORDS:
Sentencing - Application to re-open based on health grounds - further reductions in sentences refused

LEGISLATION CITED:
Nil

DECISION:
Application to further reduce sentences dismissed. The orders of the Court made herein on 4 January 2002 and today are to be passed and entered forthwith.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60864/00

O'KEEFE J
SMART AJ

Monday 4 March 2002
REGINA v JOHN REGINALD KILLICK

JUDGMENT

O’KEEFE J: I will ask Smart AJ to deliver the first judgment in this matter.

SMART AJ: On 4 January 2002 Mr Killick applied to have this Court reconsider the judgment it delivered that day. The Court’s orders have not been passed and entered pending the determination of Mr Killick’s application. In the event of the Court agreeing to reconsider its judgment, Mr Killick, who represented himself capably, seeks to have his sentences further reduced. This judgment should be read with the Court’s judgment of 4 January 2002.

In his submissions of 4 January 2002 Mr Killick contended that during his sentencing hearing in the District Court in December 2000 and the hearing of his application for leave to appeal and the appeal before this Court his health was not a major issue. Mr Killick has written that in the month prior to his sentencing hearing his blood pressure readings were fairly good and that in the two months prior to the hearing of his appeal (April 2001) his readings were reasonable. This Court was aware of Mr Killick’s hypertension/blood pressure problems.

In his oral submissions on 2 April 2001 Mr Killick sought leniency on the basis of his age and health. He took the Court to Dr Pascoe’s report of 12 December 2000 and a report from Dr A Darbar dated 7 December 1997, Emergency Medicine, Royal North Shore Hospital. Dr Darbar addressed Mr Killick’s blood pressure amongst other matters and wrote that he believed that Mr Killick’s pain was musculo-skeletal and that his blood pressure would need to be monitored in the long term. The Court regarded that 1997 report as having been superseded by Dr Pascoe’s later report.

At the hearing on 2 April 2001 Mr Killick referred us to pages of the transcript where his counsel addressed the judge on the state of Mr Killick’s health and pointed out that stress is a trigger for hypertension and that the conditions of his incarceration, including segregation, which produced a very strong element of isolation, were stressful and aggravated his stress, especially if it continued for an indefinite period.

This Court was also referred to his counsel’s submission…

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 Killick

Details

AGLC: R v Killick [2002] NSWCCA 54
Case: [2002] NSWCCA 54
Decision Date: 4 March 2002

CaseChat Overview and Summary

The case of R v Killick involved the defendant, Mr Killick, who had previously been sentenced for a criminal offence. The matter was before the court on an application to re-open the sentencing, with the basis for the application being Mr Killick's health issues. The court was required to decide whether the application to re-open the sentencing should be granted, and if so, whether the sentences should be further reduced.

The primary legal issue for the court was to determine the appropriate circumstances under which a sentencing application based on health grounds could be granted. The court also had to consider whether the sentences imposed were excessive or disproportionate in light of Mr Killick's health issues and whether a further reduction in sentences was warranted.

The court found that the application to re-open the sentencing was not appropriate in this instance. The court noted that Mr Killick's health issues, while significant, did not warrant a re-opening of the sentencing. Furthermore, the court found that the sentences imposed were not excessive or disproportionate, and therefore, any further reduction in sentences was not justified. The court refused the application to re-open the sentencing and any further reductions in sentences.

As a result of the court's decision, Mr Killick's sentences remained unchanged. The court's decision underscores the importance of considering the circumstances of each case when determining the appropriate sentence for a criminal offence. It also highlights the need for careful consideration of the evidence and arguments presented in any application to re-open sentencing.

Orders