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R v Kirchner

R v Kirchner

Case [2011] NSWSC 1516 9 December 2011

Criminal Liability

Plea of Guilty

Aggravating and Mitigating Factors

Victim Impact Statement

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kirchner [2011] NSWSC 1516
Hearing dates: 17 November 2011
Decision date: 09 December 2011
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Sentenced to a term of imprisonment with a non-parole period of 6 years, commencing on 23 April 2010 and expiring on 22 April 2016.
The balance of term is 2 years, 9 months and 18 days, which is to commence on 23 April 2016 and to expire on 9 February 2019.
The offender will be eligible for release on parole on 22 April 2016.
Order that the firearm charge before the Court under the s 166 certificate be dismissed.

Catchwords: CRIMINAL LAW - sentence - plea of guilty - murder - aided and abetted - aggravating and mitigating factors - special circumstances - victim impact statement
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Aoun [2006] NSWSC 800
Aoun v R [2007] NSWCCA 292
R v Dodd (1991) 57 A Crim R 349
R v McGaw [2007] NSWDC 33
R v Previtera (1997) 94 A Crim R 76
R v Scott [2005] NSWCCA 152
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Tzanis [2005] NSWCCA 274
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249
Category: Sentence
Parties: Regina (Crown)
Aaron John Kirchner (Accused)
Representation: Counsel:
Mr P Cattini (Crown)
Mr P Winch (Accused)
Solicitors:
Director of Public Prosecutions
Legal Aid Commission of NSW (Accused)

File Number(s): 2010/86226
Publication restriction: None

Judgment

The offender, Aaron John Kirchner, stands for sentence for the murder of Scott Bryan. He was arrested on 23 April 2010 in Queensland. He pleaded not guilty to the offence in the Local Court, but admitted his offence on 19 October 2011, on the day that the hearing was due to commence in this Court in Queanbeyan. The plea was entered before the jury was empanelled. In entering his plea, the offender said that it was on the basis that he had aided and abetted in the murder. It is common ground that it was not the offender who fired the shot which killed Scott Bryan.

Also before the Court is a certificate under s 166 of the Criminal Procedure Act 1986 in relation to a charge of buy a firearm without a license. It is common ground between the parties that this charge should be dismissed.

The maximum penalty for the crime of murder is life imprisonment (s 19A of the Crimes Act 1900). The maximum penalty for a person who aids and abets the commission of an offence, a principal in…

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 Kirchner

Details

AGLC: R v Kirchner [2011] NSWSC 1516
Case: [2011] NSWSC 1516
Decision Date: 09 December 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Kirchner involved a defendant charged with murder. Kirchner was accused of aiding and abetting in the commission of the crime, resulting in the death of an individual. The court was tasked with determining the appropriate sentence for Kirchner, who had entered a plea of guilty to the charge. The legal issues at hand included the assessment of various aggravating and mitigating factors, as well as any special circumstances that might influence the sentencing decision. Additionally, the court was required to consider the impact on the victim's family, as evidenced by a victim impact statement provided.

The court meticulously examined the facts of the case, focusing on the extent of Kirchner's involvement in the crime. It assessed both aggravating and mitigating factors, such as the premeditation and brutality of the act, alongside any personal circumstances that might warrant leniency. Special circumstances were also considered, including whether there were any reasons to depart from the standard sentencing guidelines. The victim impact statement was evaluated to understand the emotional and psychological toll on the victim's family, which played a critical role in the court's final decision.

Upon careful consideration of all the presented evidence and arguments, the court determined the appropriate sentence for Kirchner. The decision took into account the gravity of the crime, the level of involvement, and the impact on the victim and their family. The court concluded that a custodial sentence was necessary, reflecting the severity of the offence while also considering the mitigating factors. The final orders were communicated, outlining the specific sentence imposed on Kirchner.

The court's ruling emphasised the importance of balancing justice for the victim with an understanding of the defendant's role and personal circumstances. The sentence imposed aimed to provide closure to the victim's family while ensuring that the punishment was proportionate to the crime committed.

Orders