Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: R v King [2011] NSWCCA 274 Hearing dates: 3 November 2011 Decision date: 14 December 2011 Before: McClellan CJ at CL at [1]
Adams J at [2]
Hoeben J at [23]Decision: Appeal dismissed
Catchwords: CRIMINAL LAW - perjury - pervert the course of justice - offender committed arson and associated offences on 7 December 2007 - offender lied to psychologist and in evidence about date of brother's death to get sympathy and falsified death notice.
SENTENCING - Crown appeal against sentence - question of totality - sentences for perjury and pervert the course of justice made wholly concurrent with sentence for primary offences - complete concurrency for separate crimes may be appropriate -question is whether the overall sentence imposed reflects the criminality of the offences - sentencing judge did not err in making the sentences wholly concurrent where principle of totality satisfied and further punishment would be excessive.Cases Cited: R v Cutrale [2011] NSWCCA 214
House v R [1936] HCA 40; (1936) 55 CLR 499Category: Principal judgment Parties: The Crown
Nelson Gary KingRepresentation: M Cinque (Crown)
A Francis (Respondent)
S Kavanagh (Crown)
Forsters Solicitors (Respondent)
File Number(s): 2009/202492 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2011-06-21 00:00:00
- Before:
- English DCJ
- File Number(s):
- 2009/202492
Judgment
Introduction
McClellan CJ at CL : I agree with Adams J.
Adams J : On 21 June 2011 the respondent was sentenced following his pleas of guilty for an offence of perjury (maximum penalty 10 years imprisonment) to a fixed term of 12 months commencing 24 March 2010 and for an offence of perverting the course of justice (maximum penalty 14 years imprisonment) to a term of 16 months imprisonment commencing on 15 February 2011 with a non-parole period of 12 months. On 1 July 2011 the respondent was personally served with a notice of appeal against the leniency of these sentences. The offences were committed in connexion with sentence proceedings for an offence of breaking, entering and committing an indictable offence (the arson offence). The sentences under appeal were imposed after that for the arson offence but were wholly concurrent with it. The Crown appeals on the ground that the effect of concurrency was to render these sentences manifestly inadequate and that they were, at all events, manifestly inadequate.
Background
On 28 February 2007 the respondent was sentenced in the Local Court for an offence of entering a building with intent to commit an indictable offence, larceny and malicious damage. He was sentenced on each offence to 18 months imprisonment (expiring on 27 August 2008), which was suspended upon his entering into a conditional bond. On 7 December 2007, the respondent broke into business premises in Wagga Wagga and set fire to them. He was arrested for this offence on 18 March 2008 and charged with the arson offence. He was bail refused from 18 March 2008. On 9 July 2008 he was committed for trial and…
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- AGLC
- R v King [2011] NSWCCA 274
- Case
- [2011] NSWCCA 274
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the imposition of a wholly concurrent sentence for the perjury and perverting the course of justice charges, alongside the primary offences, was appropriate. The principle of totality in sentencing dictates that the cumulative penalty should not exceed the sum of the appropriate sentences for each offence. The court had to determine if the totality principle was satisfied and if making the sentences wholly concurrent would appropriately reflect the criminality of King's actions without being excessive.
The court found that the sentencing judge did not err in making the sentences wholly concurrent. The reasoning was grounded in the principle of totality, which was satisfied in this case. The court held that the overall sentence imposed was commensurate with the criminality of the offences. Complete concurrency for the separate crimes was deemed appropriate as further punishment would have been excessive. The court affirmed that the sentencing judge's decision was within the correct application of the totality principle and did not constitute an error in the sentencing process.
The final orders of the court confirmed that the sentence imposed by the sentencing judge was upheld. The concurrent sentencing of the perjury and perverting the course of justice charges with the primary offences was deemed appropriate, reflecting the totality principle and the nature of King's criminal conduct.
Orders
Orders of the court
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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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