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R v Kitson

R v Kitson

Case [2019] NSWSC 1109 28 August 2019

Criminal Liability

Sentencing

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kitson [2019] NSWSC 1109
Hearing dates: 27 August 2019
Date of orders: 28 August 2019
Decision date: 28 August 2019
Jurisdiction: Common Law
Before: Payne J
Decision:
1. Impose a sentence of imprisonment of 4 years and 6 months commencing on 28 August 2019 and expiring on 27 February 2024.
2. Pursuant to s 19AB of the Crimes Act1914 (Cth), impose a non-parole period of 3 years commencing on 28 August 2019 and expiring on 27 August 2022.

Catchwords:
CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth –objective seriousness near the top of the range – significant loss to the Commonwealth – significant degree of planning – persistent course of conduct – early plea of guilty – [redacted] – good prospects of rehabilitation

Legislation Cited:
Crimes Act 1914 (Cth), ss 16A, [redacted], 16F, 17A
Criminal Code (Cth), s 135.4(3)
Evidence Act 1995 (NSW), s 191

Cases Cited:
Bennett v R [2015] NSWCCA 56
Chang v R [2016] NSWCCA 296
Compania General De Tabacos De Filipinas v Collector of Internal Revenue 275 US 87 (1927)
Dickson v R [2016] NSWCCA 105
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
J Sakovits v R; R Sakovits v R [2014] NSWCCA 109
Kristensen v R [2018] NSWCCA 189
Liles v R (Cth) [2014] NSWCCA 289
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v Agius; R v Zerafa [2012] NSWSC 978
R v Boughen; R v Cameron [2012] NSWCCA 17
R v Chang [2017] NSWDC 429
R vHawkins (1989) 45 A Crim R 430
R v Ida Ronen, Nitzan Ronen, Izhar Ronen [2006] NSWCCA 123
R v Issakidis [2018] NSWSC 378
R v Mereb; R v Younan [2014] NSWCCA 149
Tyler v R; R v Chalmers [2007] NSWCCA 247

Category: Sentence
Parties: Regina (Crown)
Joshua Meredith Kitson (Offender)
Representation:
Counsel:
P Neil SC / K Curry (Crown)
M Dennis SC / P Butterfield (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
City Legal Solicitors (Offender)

File Number(s): 2018/00216222
Publication restriction:
(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by Payne JA are not to be published (other than to the parties and their legal representatives) until further order of the Court.

(2) Order (1) is made on the ground specified in s 8(1)(c) of the Act.
(3) Pursuant to s 11(2) of the Act, order (1) applies throughout the Commonwealth of Australia.

Judgment – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

PAYNE J: Mr Joshua Meredith Kitson has pleaded guilty and appears before me to be sentenced for the following offence pursuant to…

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 Kitson

Details

AGLC: Decision restricted [2019] NSWSC 1109
Case: [2019] NSWSC 1109
Decision Date: 28 August 2019

CaseChat Overview and Summary

The case of R v Kitson involves the defendant, Kitson, who was found guilty of conspiracy to cause loss to the Commonwealth. The matter was heard in a federal court. The dispute centred around the appropriate sentence to be imposed on Kitson, given the gravity of the offence and the circumstances surrounding it. The prosecution argued for a substantial sentence due to the significant loss caused to the Commonwealth, the degree of planning involved, and the persistent nature of the criminal conduct. Kitson, on the other hand, sought a more lenient sentence, highlighting his early guilty plea and his prospects for rehabilitation.

The primary legal issue before the court was the determination of an appropriate sentence for Kitson's criminal conduct. The court had to consider various factors, including the objective seriousness of the offence, the degree of planning, the loss caused to the Commonwealth, the defendant's conduct throughout the offence, and his prospects for rehabilitation. The court also had to weigh the mitigating factors such as the early guilty plea.

In arriving at its decision, the court thoroughly examined the nature and extent of the loss caused to the Commonwealth, finding it to be significant. The court also recognised the significant degree of planning that went into the conspiracy, which underscored the objective seriousness of the offence. The persistent nature of Kitson's criminal conduct was another factor the court considered. Despite these aggravating factors, the court acknowledged Kitson's early plea of guilty and his prospects for rehabilitation. After balancing these factors, the court determined that the sentence should reflect the high degree of seriousness of the offence, but also take into account the mitigating factors. The court concluded that the sentence should be near the top of the range, but not the highest, to allow for the potential for rehabilitation.

The court ordered that Kitson be sentenced to a term of imprisonment, with specific details regarding the length of the sentence left to be determined in accordance with the sentencing principles outlined above. The court also noted that parole eligibility would be considered in light of Kitson's rehabilitation prospects and other relevant factors.

Orders