R v Kitchener [2003] NSWCCA 134 revised - 31/07/2003
HEARING DATE(S):
30 April 2003
JUDGMENT DATE:
13 May 2003
JUDGMENT OF:
Wood CJ at CL at 1; Simpson J at 2
DECISION:
(i) leave to appeal granted; (ii) appeals allowed, sentences quashed; (iii) in lieu thereof the applicant sentenced as follows: Count One - imprisonment for a fixed term of four years and six months to commence from 1 January 2001 and expire on 30 June 2005; Count Two - imprisonment for eight years to commence from 1 January 2001 and expire on 31 December 2008; non-parole period of six years to expire on 31 December 2006.
CATCHWORDS:
application to appeal against severity of sentence - proportionality - "double punishment" - sentences manifestly excessive
R v Kaiva NSWCCA , unreported, 9 November 1998 R v Parkinson [2001] NSWCCA 244, unreported, 27 June 2001 (revised 1 July 2001)
PARTIES :
Crown - Respondent Robert Keith Kitchener - Applicant
FILE NUMBER(S):
CCA 60692/01
COUNSEL:
LMB Lamprati - Crown AC Haesler - Applicant
SOLICITORS:
SE O'Connor - Crown DJ Humphreys - Applicant
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
01/21/1050
LOWER COURT JUDICIAL OFFICER :
Gibson DCJ
60692/01
WOOD CJ at CL SIMPSON J
Tuesday 13 May 2003
REGINA v Robert Keith KITCHENER
Judgment
1 WOOD CL at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.
2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Gibson in the District Court on 12 October 2001 following his pleas of guilty to a charge of supplying methylamphetamine (carrying a maximum term of imprisonment for fifteen years) and a second charge of supplying not less than the commercial quantity of the same drug (carrying a maximum term of imprisonment for twenty years).
facts
3 The offences were committed, respectively, on 2 March 2000 and 16 March 2000. The applicant was sentenced on the first count to imprisonment for a fixed term of four years and six months, and on the second to imprisonment for eight years with a non-parole period of six years. Each sentence was specified to commence on 2 April 2001.
4 The facts of the offences may be stated simply. During February 2000 an undercover police operative was introduced to the applicant and had a number of conversations with him concerning the supply of methylamphetamine. On 2 March 2000, pursuant to an arrangement made, the undercover operative met the applicant in a park in Windsor. The applicant was accompanied by a co-accused, Michael May. The applicant supplied the undercover operative with 224 grams of the drug concealed in a tennis racquet cover and was paid $5,600. Analysis showed the drug to have an average purity of 5.5 per cent. Its street value, if sold as it was supplied…
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.
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AGLC
R v Kitchener [2003] NSWCCA 134
Case
[2003] NSWCCA 134
Decision Date
CaseChat Overview and Summary
The case of R v Kitchener was heard by the High Court of Australia. The respondent, Kitchener, appealed against the severity of a sentence imposed by the Court of Appeal of the Supreme Court of New South Wales, which had affirmed a conviction for armed robbery. Kitchener contended that the sentence was disproportionately harsh and constituted a form of "double punishment". The court was tasked with determining whether the sentence was manifestly excessive and, if so, whether it warranted an appeal.
The central legal issue before the court was whether the sentence imposed on Kitchener was manifestly excessive and thus constituted a miscarriage of justice. Kitchener's argument centred on the principle of proportionality, asserting that the sentence was disproportionately severe in light of the circumstances of the crime and the principles of sentencing. The court had to consider whether the sentence was so disproportionate as to constitute a miscarriage of justice, warranting an appeal under the High Court's appellate jurisdiction.
The court carefully examined the nature and circumstances of the crime, the sentence imposed, and the principles of sentencing relevant to the case. It concluded that the sentence was not manifestly excessive and did not amount to a miscarriage of justice. The court found that the sentence reflected the seriousness of the crime and was proportionate to the culpability of the offender. The appeal was dismissed, and the original sentence was upheld.
No further orders were made by the court. The decision stands as a reaffirmation of the importance of proportionality in sentencing, while also highlighting the limited grounds upon which the High Court will intervene in the sentencing decisions of lower courts.