R v King - [2011] NSWCCA 274

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 499
Category: Principal judgment
Parties: The Crown
Nelson Gary King
Representation: 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…

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 King

Details

AGLC: R v King [2011] NSWCCA 274
Case: [2011] NSWCCA 274
Decision Date: 14 December 2011

CaseChat Overview and Summary

The case of R v King was heard in an Australian court where the appellant, King, faced charges related to a series of criminal acts including perjury, perverting the course of justice, and arson. King had committed arson and associated offences on 7 December 2007, and further lied to a psychologist and in court about the date of his brother's death. The lies were intended to elicit sympathy and manipulate the circumstances surrounding his brother's death notice. The court had to address whether the sentences for the perjury and perverting the course of justice charges should run concurrently with the sentences for the primary offences.

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