R v King (No. 2)

[2013] NSWSC 1811

Supreme Court

New South Wales

Medium Neutral Citation:

R v King (No. 2) [2013] NSWSC 1811

Hearing dates:

22 November 2013

Decision date:

06 December 2013

Before:

Bellew J

Decision:

(i) Pursuant to s. 43(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) I re-open the sentence proceedings of the offender;

(ii) In respect of the offence of recklessly inflicting grievous bodily harm upon David Lindsay, and in lieu of the sentence imposed upon the offender on 21 June 2013, the offender is sentenced to a non-parole period of 2 years and 6 months imprisonment, commencing on 1 April 2012 and ending on 30 September 2014, with a balance of term of 10 months commencing on 1 October 2014 and ending on 31 July 2015.

Catchwords:

CRIMINAL LAW - sentence - re-sentence - where fixed term originally imposed for offence carrying a standard non-parole period - necessity to correct sentence - where overall term of imprisonment imposed was intended to reflect the totality of the offending

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

Collier v R [2012] NSWCCA 213
Mammone v R [2013] NSWCCA 95
SGJ v R; KU v R [2008] NSWCCA 258

Category:

Sentence

Parties:

Regina - (Crown)
Sean Lee King - (Offender)

Representation:

Ms K Shead - (Crown)
Mr J Stratton SC - (Offender)
S Kavanagh Solicitor for Public Prosecutions - (Crown)
Gregory Goold - (Offender)

File Number(s):

2011/230096

Publication restriction:

Nil

Judgment

1. On 21 June 2013 I sentenced Sean Lee King ("the offender") in respect of a number of offences (see R v King [2013] NSWSC 80). The offences, and the sentences I imposed in respect of them, were as follows:

(i)   in respect of the charge of assaulting Kimberly Lasaqa thereby occasioning actual bodily harm to her, a fixed term of 9 months imprisonment, commencing on 1 October 2011 and ending on 30 June 2012.

(ii)   in respect of the charge of recklessly inflicting grievous bodily harm upon David Lindsay, a fixed term of 2 years and 6 months imprisonment, commencing on 1 April 2012 and ending on 30 September 2014.

(iii)   in respect of the charge of murdering Jazmin-Jean Ajbschitz, a non-parole period of 24 years imprisonment, commencing on 1 April 2013 and ending on 31 March 2037, with a balance of term of 8 years imprisonment, commencing on 1 April 2037 and ending on 31 March 2045.

1. The total term of imprisonment imposed was one of 33 years and 6 months. The total non-parole period was one of 25 years and 6 months.

1. Following the imposition of those sentences, the Crown made an application to re-open the proceedings pursuant to s 43 of the Crimes Sentencing Procedure Act 1999 ("the Act") specifically in respect of the sentence imposed in respect of the offence in [1](ii) above. The offender has appeared before the court by video link today.

1. The reason for the Crown's application arose from the fact that the offence in respect of which that sentence was imposed was an offence contrary to s. 35(2) of the Crimes Act 1900 (NSW). A standard non-parole period of four (4) years applies to that offence. Although s. 45(1) of the Act permits a Court to decline to set a non-parole period, that provision does not apply in the case of an offence for which a standard non-parole period is prescribed (see SGJ v R; KU v R [2008] NSWCCA 258 at [76]-[78]; Mammone v R [2013] NSWCCA 95 at [47]). It was agreed between the parties, and I accept, that the sentence imposed for the offence in [1](ii) requires correction. It was also agreed between the parties that s. 43 of the Act confers a power to re-open the proceedings for that purpose.

1. There have been a number of cases in which the Court of Criminal Appeal has addressed an issue such as the present. In doing so, differing views have been expressed as to whether, in such circumstances, the fixed term imposed should be regarded as reflecting an intention on the part of the sentencing judge that such term represent the non-parole period (as to which see the discussion in Collier v R [2012] NSWCCA 213 at [55]-[62] per R A Hulme J). In this respect, the present case is somewhat different in light of the fact that I sentenced the offender. In doing so in respect of the offence in [1](ii), I set out the circumstances of the offending (at [131]), its objective seriousness (which I found, at [164], to be of a high order), the aggravating factors (at [158]-[159]), the mitigating factors [at 165] and the question of remorse and prospects of rehabilitation [at 166]. As will be evident from my observations at [162], the overall sentence was one at which I arrived having considered principles of totality.

1. In sentencing the offender, I came to the view that the overall sentence imposed was a proper reflection of the entirety of the objective and subjective circumstances before me. Whilst the sentence in [1](ii) must be corrected, the fixed term which was imposed in respect of the offence in [1](ii) will be the non-parole period and an additional term will be imposed. However, that additional term will be completely subsumed by the sentence imposed for the offence of murder, such that the overall non-parole period, and the overall total sentence, will remain unchanged. Such a result accords with my original intention.

1. Accordingly, I make the following orders:

(i) Pursuant to s. 43(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) I re-open the sentence proceedings of the offender.

(ii)   In respect of the offence of recklessly inflicting grievous bodily harm upon David Lindsay, and in lieu of the sentence imposed upon the offender on 21 June 2013, the offender is sentenced to a non-parole period of 2 years and 6 months imprisonment, commencing on 1 April 2012 and ending on 30 September 2014, with a balance of term of 10 months commencing on 1 October 2014 and ending on 31 July 2015.

**********

Decision last updated: 06 December 2013