R v Killick - [2002] NSWCCA 1

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Killick [2002] NSWCCA 1

FILE NUMBER(S):
60864/00

HEARING DATE(S): 2 and 3 April 2001

JUDGMENT DATE: 04/01/2002

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
(R) E Wilkins

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

CATCHWORDS:
Sentencing for serious multiple offences - correct commencement dates for subsequent sentences - must start at expiration of non-parole period of prior sentences - allowance for early plea of guilty - Law Reform - need for amendment of sentencing legislation to ensure total of head sentences not reduced, by reason of accumulation provisions, to an unacceptable level.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
See para 80

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60864 of 2000
O'KEEFE J
SMART AJ

Friday 4 January 2002

REGINA v JOHN REGINALD KILLICK

JUDGMENT

O'KEEFE J: I agree with Smart AJ.

SMART AJ: Mr Killick, the applicant, who represented himself adequately, seeks an extension of time and leave to appeal against the alleged severity of a series of sentences imposed upon him in the District Court on 21 December 2000 pursuant to his pleas of guilty. The sentencing judge intended to impose head sentences totalling 28 years and non-parole periods totalling 15 years, both commencing on 9 May 2000.

An extension of time should be granted as the records show that the applicant completed an application for leave to appeal at Goulburn Gaol on 24 December 2000 and handed it to the gaol authorities. Apparently it was mislaid after they had forwarded it. On 28 January 2001 Mr Killick wrote to the Registry asking why his application had not been acknowledged. A Registry officer requested that The applicant lodge another application for leave to appeal. On 14 February 2001 The applicant completed a further application for leave to appeal. That was received in the Registry on 15 February 2001.

The charges and the sentences imposed were:
Indictment 1, Count 1:
Robbery11 years. No non-parole term set.
9/5/99 to 8/5/10
Concurrent with indictment 1, Count 2
Indictment 1, Count 2:
Robbery13 years (9/5/99 to 8/5/12)
Non-parole Term 7 years (9/5/99 to 8/5/06)
Indictment 1, Count 3:
Discharge Firearm  7 years
No non-parole term set
9/5/99 to 8/5/06
Concurrent with indictment 1, Count 2
Indictment 2, Count 1:
Escape5 years (9/5/12 to 8/5/17)
Non-parole Term 2.5 years (9/5/06 to 8/11/08)
Cumulative on indictment 1, Counts 1-3
Indictment 2, Count 2:
Assault Pilot                7 years. (9/5/17 to 8/5/24 )
Non-parole Term 3.5 years(9/11/08 to 8/5/12)
Cumulative on indictment 1, Counts 1-3
and indictment 2, Count 1.
Indictment 2, Count 3:
Detain for advantage                  3 years (9/5/24 to 8/5/27)
Non-parole Term 2 years (9/5/12 to 8/5/14)
Cumulative on indictment 1, Counts 1-3
and indictment 2, Counts 1-2
Indictment 2, Count 4: 6 months
Steal motor vehicle  No non-parole Term set
Served concurrently
There are a…

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 1
Case: [2002] NSWCCA 1
Decision Date: 4 January 2002

CaseChat Overview and Summary

In the case of R v Killick, the appellant was convicted of several serious offences and sentenced to various terms of imprisonment. The primary issue before the court was the correct commencement dates for subsequent sentences, specifically whether they should begin at the expiration of the non-parole period of prior sentences, and whether an early plea of guilty should be taken into account. The court was also tasked with considering whether the relevant sentencing legislation required amendment to ensure that the total of head sentences was not reduced by accumulation provisions to an unacceptable level.

The court considered the relevant statutory provisions and case law concerning the imposition and commencement of sentences. It noted that under current legislation, the commencement date of subsequent sentences should align with the expiration of the non-parole period of prior sentences, but this could be adjusted for an early plea of guilty. The court acknowledged the need for legislative reform to prevent the reduction of total sentences to an unacceptable level due to accumulation provisions. The court concluded that the current legislation did not adequately address the issue and recommended that the legislature consider amending the law to ensure that the total of head sentences remained at an appropriate level.

The court found that the appellant's sentences should commence at the expiration of the non-parole periods of the prior sentences, with an appropriate adjustment for the early plea of guilty. The court emphasised the need for legislative reform to address the broader issue of the accumulation of sentences. The court remitted the matter to the sentencing court for re-sentencing in accordance with the principles outlined in the judgment.

The court made no further orders beyond the directions for re-sentencing and the recommendation for legislative reform. The appellant's convictions were upheld, but the sentences were to be re-imposed with the appropriate commencement dates and adjustments. The court's decision highlighted the importance of ensuring that sentencing legislation effectively balances the need for deterrence and rehabilitation with the principles of proportionality and fairness.

Orders