R v Kinsela - [2003] NSWCCA 92

CITATION: R v Kinsela [2003] NSWCCA 92

HEARING DATE(S): 17/03/2003

JUDGMENT DATE:
4 April 2003

JUDGMENT OF: Santow JA at 1; Buddin J at 30; Smart AJ at 31;

DECISION: (1) Leave to appeal against sentence granted; (2) Appeal against sentence allowed in part; (3) Dismiss appeal against sentence of 3 years imprisonment commencing on 2 May 2002 and expiring on 1 May 2005; (4) Appeal allowed against non parole period of 2 years. In lieu thereof fix a non parole period of 15 months to expire on 1 August 2003 on which day the Applicant is to be released to supervised parole. The parole conditions are to include that the Applicant subject himself to the supervision and guidance of the Probation and Parole Service and obey all reasonable directions in relation to psychiatric treatment and/or counselling including in particular to starting of fires, including the taking of medication prescribed by a medical practitioner.

CATCHWORDS: SENTENCE APPEAL - offence under Rural Fires Act 1997 - offender diagnosed with psychiatric conditions - "special circumstances" under s44(2) of the Crimes (Sentencing Procedure) Act 1999 - length of non parole period - the existence of "special circumstances" justified further shortening the non parole period.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s44(2)
Rural Fires Act 1997 (NSW) s100(1)(a)

PARTIES :
Regina
James Henry KINSELA

FILE NUMBER(S): CCA 60288/02

COUNSEL: P Segal (Applicant)
L M P Lamprati (Crown)

SOLICITORS: Brock Partners (Applicant)
S E O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0942

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

CCA 60288/02
DC 01/11/0942

SANTOW JA
BUDDIN J
SMART AJ
4 APRIL 2003

REGINA v James Henry KINSELA

Judgment

1 SANTOW JA:

INTRODUCTION

2 The offence for which he was convicted was under s100(1)(a) of the Rural Fires Act 1997 (NSW) (“the Act”). It creates an offence with a maximum penalty of imprisonment for five years if a person without lawful authority “sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority …”

3 The salient facts can be stated in short compass, given that conviction is no longer in issue but only sentence. On 5 October 2002, the Applicant was in the Garigal National Park adjacent to Bantry Bay. He was walking towards Seaforth Oval after having had an argument with his brother with whom he lived. He was seen by a number of witnesses on boats moored in Bantry Bay. He was seen standing in a close vicinity to a fire in bushland near the shore. He was then seen to commence a second fire. The onlookers telephoned the Police and Fire Brigade. Water Police spotted the offender watching the…

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 Kinsela

Details

AGLC: R v Kinsela [2003] NSWCCA 92
Case: [2003] NSWCCA 92
Decision Date: 4 April 2003

CaseChat Overview and Summary

The appellant, Kinsela, was convicted of a serious offence under the Rural Fires Act 1997. The dispute arose from the sentence imposed by the District Court, which the appellant sought to appeal. The appeal was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the sentence imposed by the District Court was excessive, particularly in relation to the length of the non-parole period. The appellant argued that his psychiatric conditions constituted special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, which justified a reduction in the non-parole period.

The court considered the appellant's psychiatric conditions and whether they amounted to special circumstances that warranted a further reduction in the non-parole period. The court recognised the appellant's psychiatric conditions and the impact they had on his offending behaviour. However, the court found that the District Court had already taken these conditions into account when imposing the sentence. The court concluded that while the appellant's psychiatric conditions were a factor, they did not constitute special circumstances that warranted a further reduction in the non-parole period.

The Supreme Court dismissed the appeal, finding that the sentence imposed by the District Court was appropriate. The court held that the District Court had correctly considered the appellant's psychiatric conditions when imposing the sentence, and that the sentence was not excessive. The court did not order any changes to the sentence imposed by the District Court.

Orders