CITATION: Regina v Kirkland [2005] NSWCCA 130
HEARING DATE(S): 08/04/2005
JUDGMENT DATE:
21 April 2005JUDGMENT 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 1912CASES 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 465PARTIES: Regina
Paul Matthew KirklandFILE NUMBER(S): CCA 2004/3297
COUNSEL: Mr W Dawe QC Crown
Mr G Jauncey AppellantSOLICITORS: 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:
- (1) maliciously inflicting grievous bodily harm to Richard Boyd Law with intent to do so; and
(2) an earlier aggravated break and enter of Mr Law’s dwelling and the stealing of a stereo sound system and speakers from that dwelling, the aggravation being that the two men were in company.
The plea to the first of these offences was accepted by the Crown in discharge of a further count in the indictment charging both men with feloniously causing grievous bodily harm to Mr Law with intent to murder him.
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…
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- R v Kirkland [2005] NSWCCA 130
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- [2005] NSWCCA 130
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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