SENTENCING - pleas of guilty to multiple offences of break, enter and steal and break and enter with intent to steal - offences directed at small business premises in country towns - application of principles in Pearce v The Queen (1998) 194 CLR 610 - error in treating as aggravating factor under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 the fact the offences were committed in company - applicant re-sentenced in accordance with Pearce principles.
Abbott Pardy & Jenkins (Appellant) Mr S Kavanagh (Crown)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
03/51/1094
LOWER COURTJUDICIAL OFFICER:
His Honour Judge Urquhart QC
2004/3271
Mason P Barr J Johnson J
27 July 2005
Regina v Kerrie-Ellen Robyn Knight
Judgment
1 Mason P: I agree with Johnson J.
2 Barr J: I agree with Johnson J.
3 Johnson J: The Applicant, Kerrie-Ellen Robyn Knight, seeks leave to appeal against sentences imposed by his Honour Judge Urquhart QC at the Armidale District Court on 19 February 2004.
4 On 22 October 2003, the Applicant pleaded guilty in the Armidale Local Court to 36 charges comprising:
(a) 27 counts of break, enter and steal contrary to s.112(1) Crimes Act 1900 (maximum penalty 14 years imprisonment);
(b) three counts of break and enter with intent contrary to s.113(1) Crimes Act 1900 (maximum penalty 10 years imprisonment);
(c) one count of disposing of stolen property contrary to s.189 Crimes Act 1900 (maximum penalty three years imprisonment);
(d) four counts of larceny contrary to s.117 Crimes Act 1900 (maximum penalty five years imprisonment);
(e) one count of stealing a motor vehicle contrary to s.154AA Crimes Act 1900 (maximum penalty 10 years imprisonment).
5 In the District Court, the Applicant…
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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Details
AGLC
R v Knight [2005] NSWCCA 253
Case
[2005] NSWCCA 253
Decision Date
CaseChat Overview and Summary
The case of R v Knight involved the defendant, Knight, who was sentenced for multiple offences of breaking and entering and stealing, with intent to steal, from small business premises in various country towns. The case was heard in the higher court of appeal, where the legality of the original sentencing was challenged. The court was tasked with determining whether the original sentencing contained any errors, particularly in the application of the principles set out in Pearce v The Queen.
The primary legal issue before the court was whether the sentencing judge had erred in considering certain factors as aggravating the offence. Specifically, the court examined whether the fact that the offences were committed in the presence of others should be treated as an aggravating factor under section 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999. The applicant argued that this factor was incorrectly applied and that it should not have been given as much weight as it was in the original sentencing.
The court found that there was indeed an error in the original sentencing, as the judge had misapplied the principles from Pearce v The Queen by treating the fact that the offences were committed in company as an aggravating factor. The court held that this factor should not have been given such significance, as it did not appropriately reflect the principles established in Pearce. Consequently, the court re-sentenced the applicant in accordance with the principles outlined in Pearce, ensuring that the sentencing was more aligned with established legal standards. The re-sentencing aimed to correct the previous error and provide a more appropriate punishment that adhered to the relevant legal framework.