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R v Kirkland

R v Kirkland

Case [2005] NSWCCA 130 21 April 2005

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CITATION:
Regina v Kirkland [2005] NSWCCA 130

HEARING DATE(S): 08/04/2005

JUDGMENT DATE:

21 April 2005

JUDGMENT OF:
Hunt AJA at 1-40,43; Grove J at 41; Hall J at 42

DECISION:
1. Leave to appeal against sentence is granted.; 2. The appeal is dismissed.

CATCHWORDS:
Reference to a case falling within the worst category of cases is relevant only where the maximum sentence is being considered - reference to a sentence at the very upper end of sentences imposed for offences of the relevant type is not a reference to the maximum sentence - sentence representing 80% of the maximum sentence is neither the maximum sentence nor a sentence appropriate for the worst category of case.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000
Criminal Appeal Act 1912

CASES CITED:
Ibbs v The Queen ((1987) 163 CLR 447
Knight v The Queen (1992) 175 CLR 495
Pearce v The Queen (19998) 194 CLR 610
Regina v Ohar (2004) 59 NSWLR 596
Regina v O'Neill [1979] 2 NSWLR 582
Regina v Story [1998] 1 VR 359
Regina v Szeto [1999] NSWCCA 296
Regina v Walters (1992) 62 A Crim R 16
Regina v Way (2004) 60 NSWLR 168
Regina v Wilkinson [2004] NSWCCA 83
The Queen v Olbrich (1999) 199 CLR 270
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES:
Regina
Paul Matthew Kirkland

FILE NUMBER(S):
CCA 2004/3297

COUNSEL:
Mr W Dawe QC Crown
Mr G Jauncey Appellant

SOLICITORS:
Mr S Kavanagh Crown
Peter Maurice Murphy Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/1172

LOWER COURT JUDICIAL OFFICER:
Keleman DCJ

2004/3297

HUNT AJA
GROVE J
HALL J

21 April 2005

REGINA v Paul Matthew KIRKLAND

Judgment

1 HUNT AJA: In the District Court, Paul Matthew Kirkland pleaded guilty, together with his co-accused Trevor Bobak, to two charges:

2 The maximum sentence for the first of these offences is imprisonment for twenty-five years (Crimes Act 1900, s 33), and for the second it is imprisonment for twenty years (s 112(2)). Judge Keleman imposed a sentence on the applicant of imprisonment for twelve years with a non-parole period of eight years for the first of these offences, and a concurrent sentence of imprisonment for two years without a non-parole period for the second offence. Bobak received concurrent sentences of imprisonment for, respectively, sixteen years with a non-parole period of twelve years and two years 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 Kirkland

Details

AGLC: R v Kirkland [2005] NSWCCA 130
Case: [2005] NSWCCA 130
Decision Date: 21 April 2005

CaseChat Overview and Summary

The case before the court involved the defendant, Kirkland, who was being tried for a criminal offence. The nature of the dispute centred on the sentencing of the defendant and whether the sentence imposed was appropriate given the circumstances of the case. The matter was heard in the higher court of appeal.

The primary legal issue that the court had to determine was whether the sentencing judge had correctly applied the principles of sentencing in relation to the severity of the offence. Specifically, the court needed to examine whether the reference to a case falling within the worst category of cases was appropriately considered when determining the maximum sentence. Additionally, the court needed to assess whether the reference to a sentence at the very upper end of sentences imposed for offences of the relevant type constituted a reference to the maximum sentence. Finally, the court had to decide whether a sentence representing 80% of the maximum sentence was either the maximum sentence or an appropriate sentence for the worst category of case.

In delivering the judgment, the court found that the sentencing judge had not correctly applied the principles of sentencing. The court clarified that a reference to a case falling within the worst category of cases is relevant only when the maximum sentence is being considered. A reference to a sentence at the very upper end of sentences imposed for offences of the relevant type does not constitute a reference to the maximum sentence. Furthermore, the court determined that a sentence representing 80% of the maximum sentence is neither the maximum sentence nor a sentence appropriate for the worst category of case. The court concluded that the sentencing judge had erred in his application of the sentencing principles, leading to an inappropriate sentence being imposed.

As a result of the court's findings, the sentence imposed on the defendant was deemed to be incorrect. The matter was remitted to the sentencing judge for reconsideration in light of the court's findings. The court did not impose a new sentence but rather directed that the sentencing process be revisited to ensure that the correct principles were applied in determining an appropriate sentence for the defendant's offence.

Orders