R v Korat - [2021] NSWDC 29

District Court

New South Wales

Medium Neutral Citation: R v Korat [2021] NSWDC 29
Hearing dates: 04 February 2021
Date of orders: 05 February 2021
Decision date: 05 February 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Sentence of imprisonment of 2 years, the offender is to be released at the expiry of 12 months from the commencement of the sentence, namely 03 February 2022, conditionally upon him entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 3 years

Catchwords:
CRIME — Federal offences
MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Threat by telephone
SENTENCING — Federal offenders — Relevant considerations
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law
SENTENCING — Non-parole period — Power to refrain from specifying non-parole period — Federal offender dealt with by State court
SENTENCING — Penalties — Imprisonment
SENTENCING — Penalties — Recognisance
SENTENCING — Plea of guilty — Committal for sentence
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Moral culpability
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Sentencing procedure — Agreed facts
SENTENCING — Sentencing procedure — Pre-sentence reports
SENTENCING — Sentencing procedure — Pre-sentence reports — Use of hearsay material
SENTENCING — Sentencing procedure — Pronouncement of sentence
SENTENCING — Sentencing procedure — Reasons for sentence
SENTENCING — Subjective considerations on sentence — Drug addiction
SENTENCING — Subjective considerations on sentence — Health issues
SENTENCING — Subjective considerations on sentence — Intoxication

Legislation Cited:
Crimes Act1914
Criminal Code Act 1995
MentalHealth Act 2007

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
Munda v State of Western Australia [2013] HCA 38
R v Cooney (Unreported, QLD District Court, Bowskill QC DCJ, 27 February 2017)
R v Gambier [2009] QCA 138
R v Qutami [2001] NSWCCA 353
R v Rosario (Unreported, Western Australia District Court, Bowden DCJ, 22 March 2012)
R v Siddiq-Conlon (Unreported, NSW District Court, Hock DCJ, 23 November 2012)
Tepania v R [2018] NSWCCA 247
Veen v The Queen (No. 2) [1988] HCA 14
Western Australia R v Stewart (Unreported, Western Australia District Court, McCann DCJ, 03 May 2010)
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Regina (Crown)
Sanjay Kalubhai Korat (Offender)
Representation:
Rory Macken (CDPP)
Barbara Coorey (Solicitor for the Offender)
Director of Public Prosecutions (C’th) (Crown)
Winder Lawyers

File Number(s): 2019/00097825

REVISED EX TEMPORE JUDGEMENT

Introduction

Sanjay Kalubhai Korat pleaded guilty in the Local Court from whence he was committed to the District Court for sentence upon one charge contrary to s 474.16 Criminal Code Act 1995 shortly stated as using a carriage service to make a hoax threat.

The Offence

The particulars of the charge are as follow:

“On about 26 March 2019 at Newcastle in the State of New South Wales, Sanjay Kalubhai Korat did use a carriage service, namely mobile…

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 Korat

Details

AGLC: R v Korat [2021] NSWDC 29
Case: [2021] NSWDC 29
Decision Date: 05 February 2021

CaseChat Overview and Summary

The defendant, Korat, faced the Federal Court of Australia on charges related to federal offences concerning telecommunications services. The primary dispute revolved around allegations that Korat had made threatening phone calls, an act that contravenes Commonwealth law. The matter was heard and determined by the Federal Court, which was tasked with addressing the legal issues pertinent to the sentencing of Korat, who had pleaded guilty to the charges. The court's responsibilities included interpreting and applying federal sentencing laws, considering the objective and subjective factors relevant to the offence, and deciding on an appropriate sentence that aligns with the statutory framework and judicial principles.

The legal issues before the court encompassed several critical aspects of sentencing, including the objective seriousness of the offence, the moral culpability of the offender, and the appropriate penalty within the context of federal law. The court also needed to consider the offender's subjective circumstances, such as his health issues, drug addiction, and state of intoxication at the time of the offence. Furthermore, the court had to deliberate on the power to refrain from specifying a non-parole period and the implications of sentencing a federal offender in a state court. The court's decision needed to balance the statutory requirements with the principles of justice and the circumstances of the case.

In delivering the sentence, the court meticulously evaluated the agreed facts and the contents of the pre-sentence report, which included hearsay material. The court acknowledged the seriousness of the offence and the offender's moral culpability but also took into account his health issues, drug addiction, and intoxication. The court determined a sentence of imprisonment for two years but specified that the offender would be released conditionally at the expiry of twelve months from the commencement of the sentence. The conditional release was subject to Korat entering a recognisance of $5,000 and adhering to good behaviour for three years. The court provided detailed reasons for the sentence, ensuring that the punishment was proportionate and reflective of the offender's circumstances and the nature of the offence.

Orders

Orders of the court

Sentence of imprisonment of 2 years, the offender is to be released at the expiry of 12 months from the commencement of the sentence, namely 03 February 2022, conditionally upon him entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Korat [2021] NSWDC 29
Hearing dates:	04 February 2021
Date of orders:	05 February 2021
Decision date:	05 February 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 2 years, the offender is to be released at the expiry of 12 months from the commencement of the sentence, namely 03 February 2022, conditionally upon him entering a recognizance in himself of an amount of $5,000, to be of good behaviour for 3 years
Catchwords:	CRIME — Federal offences MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Threat by telephone SENTENCING — Federal offenders — Relevant considerations SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Non-parole period — Power to refrain from specifying non-parole period — Federal offender dealt with by State court SENTENCING — Penalties — Imprisonment SENTENCING — Penalties — Recognisance SENTENCING — Plea of guilty — Committal for sentence SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Moral culpability SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Sentencing procedure — Pre-sentence reports SENTENCING — Sentencing procedure — Pre-sentence reports — Use of hearsay material SENTENCING — Sentencing procedure — Pronouncement of sentence SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Drug addiction SENTENCING — Subjective considerations on sentence — Health issues SENTENCING — Subjective considerations on sentence — Intoxication
Legislation Cited:	Crimes Act1914 Criminal Code Act 1995 MentalHealth Act 2007
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Munda v State of Western Australia [2013] HCA 38 R v Cooney (Unreported, QLD District Court, Bowskill QC DCJ, 27 February 2017) R v Gambier [2009] QCA 138 R v Qutami [2001] NSWCCA 353 R v Rosario (Unreported, Western Australia District Court, Bowden DCJ, 22 March 2012) R v Siddiq-Conlon (Unreported, NSW District Court, Hock DCJ, 23 November 2012) Tepania v R [2018] NSWCCA 247 Veen v The Queen (No. 2) [1988] HCA 14 Western Australia R v Stewart (Unreported, Western Australia District Court, McCann DCJ, 03 May 2010) Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Regina (Crown) Sanjay Kalubhai Korat (Offender)
Representation:	Rory Macken (CDPP) Barbara Coorey (Solicitor for the Offender) Director of Public Prosecutions (C’th) (Crown) Winder Lawyers
File Number(s):	2019/00097825