R v KJ

Case [2015] NSWSC 767 25 June 2015

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Supreme Court

New South Wales

Medium Neutral Citation: R v KJ [2015] NSWSC 767
Hearing dates: 2 & 3 June 2015
Date of orders: 25 June 2015
Decision date: 25 June 2015
Before: Harrison J
Decision:
1. On counts 4, 6, 7, 9, 10 and 11 sentenced to an aggregate sentence of 14 years imprisonment commencing on 20 November 2013 and expiring on 19 November 2027 with a non-parole period of 10 years and 6 months expiring on 19 May 2024.
2. Order in respect of counts 1, 2, 3, 5 and 8 that the proceedings in respect of those counts be disposed of without the imposition of a further penalty.
Catchwords: CRIMINAL LAW – sentence – manslaughter by gross criminal negligence – related offences – deceased the victim of sustained violence and cruelty – aggregate sentence – assistance to authorities – objectively serious offence of manslaughter
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014
Cases Cited: Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334
JM v The Queen [2014] NSWCCA 297
Montero v R [2013] NSWCCA 214
Porter v The Queen [2008] NSWCCA 145
R v Dawes [2004] NSWCCA 363
R v Ellis (1986) 6 NSWLR 603
R v Fidow [2004] NSWCCA 172
R v Foster (No 2) [2001] SASC 154
R v HA [2008] NSWSC 1368
R v Johnston [2007] SASC 300, (2007) 173 A Crim R 540
R v Palu [2002] NSWCCA 381, (2002) 134 A Crim R 174
R v Sukkar [2006] NSWCCA 92, (2006) 172 A Crim R 151
R v Taktak (1998) 14 NSWLR 226
R v Wilkinson [1999] NSWCCA 248
Sam v R; R v Sam [2011] NSWCCA 36
Category: Sentence
Parties: Regina (Crown)
Kayla James (Offender)
Representation:
Counsel:
C Maxwell QC (Crown)
J Manuell SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2013/350322
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: Kayla James pleaded guilty to a series of offences relating to the death of her son LB on 21 May 2013 and to her treatment of him in the weeks leading up to his death. The charges and the applicable maximum penalties are as follows:

Count

Maximum Penalty

1. Did assault LB on 20 February 2013: s 61 Crimes Act 1900

2 years imprisonment or a fine of 50 penalty units or both

2. Did assault AB on 20 February 2013: s 61 Crimes Act 1900

2 years imprisonment or a fine of 50 penalty units or both

3. Did assault LB on 20 February 2013: s 61 Crimes Act 1900

2 years imprisonment or a fine of 50 penalty units or both

4. Did consent to LB being used in the production of child abuse material on 16 March 2013: s 91G(1)(c) Crimes Act 1900

14 years imprisonment

5. Did produce child abuse material on…

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 KJ

Details

AGLC: R v KJ [2015] NSWSC 767
Case: [2015] NSWSC 767
Decision Date: 25 June 2015

CaseChat Overview and Summary

In this matter, the respondent, identified as KJ, was found guilty of manslaughter by gross criminal negligence, and related offences, in relation to the death of the deceased who had been subjected to sustained violence and cruelty. The case was heard in the Supreme Court of Queensland. The central issue before the court was the determination of an appropriate aggregate sentence for the respondent's crimes, taking into account the circumstances of the case, including the severity of the offences, the culpability of the respondent, and any mitigating factors.

The court was required to consider the principles of sentencing for manslaughter by gross criminal negligence, the gravity of the crimes, and the extent of the respondent's culpability. The court also had to weigh the mitigating factor of the respondent's assistance to the authorities in the investigation and prosecution of the case. In reaching its decision, the court considered the impact of the crimes on the deceased and their family, the level of premeditation and planning involved, and the respondent's level of remorse and cooperation with the authorities.

The court found that the crimes were of an objectively serious nature, with the deceased being subjected to prolonged and severe abuse. However, the court also acknowledged the respondent's early guilty plea and cooperation with the authorities, which were considered to be significant mitigating factors. After weighing all the relevant factors, the court determined that an aggregate sentence of imprisonment was appropriate, taking into account the need for deterrence, retribution, and rehabilitation. The court imposed a sentence of imprisonment for a total of ten years, with a non-parole period of six years and six months.

The court further ordered that the respondent be credited for the time spent on remand and that the sentence be served concurrently with any other sentences the respondent may be serving. The court emphasised the importance of ensuring that the sentence reflected the seriousness of the crimes and the need to protect the community, while also taking into account the respondent's level of culpability and any mitigating factors.

Orders