R v KS

Case [2005] NSWCCA 87 15 March 2005

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CITATION:
R v KS [2005] NSWCCA 87

HEARING DATE(S): 15 March 2005

JUDGMENT DATE:

15 March 2005

JUDGMENT OF:
Tobias JA at 47, 49; Wood CJ at CL at 1; Buddin J at 48

DECISION:
Crown appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - armed robbery - appeal by Director of Public Prosecutions - failure of Respondent to give evidence in accordance with undertaking given at time of sentencing

LEGISLATION CITED:

Criminal Appeal Act 1912

CASES CITED:
R v Bagnell and Russell NSWCCA 10 June 1994
R v El-Sayed (2003) 57 NSWLR 659
R v Hammond (2002) 121 A Crim R 1
R v Hocking [2000] NSWCCA 339
R v J (1992) 64 A Crim R 441
R v O'Brien NSWCCA 10 June 1993
R v SY and Anor [2003] NSWCCA 291
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Walters and Watkins (1994) 33 NSWLR 612
R v Waqa [2004] NSWCCA 405

PARTIES:
Regina
KS

FILE NUMBER(S):
CCA 2005/59

COUNSEL:
J Bennett SC (Crown)
H Dhanji

SOLICITORS:
S Kavanagh
S E O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/3379

LOWER COURT JUDICIAL OFFICER:
Sides J

- 12 -

2005/59

TOBIAS JA
WOOD CJ at CL
BUDDIN J

Tuesday 15 March 2005

Regina v KS

Judgment

1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act, as a result of the Respondent's failure to give evidence in accordance with an undertaking, which he had given at the time when he was sentenced.

FACTS

2 The Respondent was involved in a serious offence of armed robbery which took place at the Abruzzi club on 6 August 2001 after it had closed for the night. There were allegedly four persons involved: DV, SY, the Respondent and another person, whom I shall refer to by the initial A since he is waiting trial. It was the Crown case that the offenders were armed with replica pistols and a crowbar, and that staff members who were still present in the premises were tied up, threatened with the replica pistols, and kicked. A sum of $55,000 was stolen from the safe and various sums were taken from the cupboard where staff kept their belongings.

3 Arising out of these events the Respondent was charged with one count of robbery while armed with an offensive weapon, and with 2 counts of assault. Two offences of larceny in relation to the property that was stolen from the staff were taken into account on a Form 1. On 10 April 2003 the respondent admitted his involvement and named his co-offenders in the course of an electronically recorded interview with police. On 15 May 2003 he signed an undertaking to give evidence against the man A.

4 On 23 May 2003 he appeared before Judge Sides QC in the District Court for sentence, adhered to the plea of guilty, which he had offered in the Local Court, and confirmed…

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 KS

Details

AGLC: R v KS [2005] NSWCCA 87
Case: [2005] NSWCCA 87
Decision Date: 15 March 2005

CaseChat Overview and Summary

The case of R v KS involved an appeal by the Director of Public Prosecutions against the sentence given to the respondent, KS, who was convicted of armed robbery. The Court of Appeal was required to determine whether the failure of KS to give evidence in accordance with the undertaking given at the time of sentencing constituted a breach of the agreement, and whether this breach warranted a revision of the sentence. The legal issues at the heart of this appeal centred on the interpretation of the conditions under which KS had been sentenced and whether these conditions had been met. Specifically, the court had to examine the terms of the undertaking, assess whether KS had complied with these terms by providing evidence as required, and determine the consequences of any non-compliance on the original sentence.

In examining these issues, the Court of Appeal noted that at the time of sentencing, KS had provided an undertaking to give evidence in any subsequent proceedings related to the offence. The court found that KS had failed to provide this evidence as agreed, which constituted a breach of the conditions under which the sentence was imposed. The court further considered the implications of this breach, finding that it warranted a reconsideration of the sentence. The Court of Appeal held that the breach of the undertaking was significant enough to impact the original sentence, which had been influenced by the promise of providing future evidence. Consequently, the court determined that the sentence should be reviewed in light of KS's failure to comply with the terms of the undertaking.

The Court of Appeal revised the sentence imposed on KS, reflecting the breach of the original conditions. The revised sentence was deemed appropriate given the circumstances, ensuring that the sentence now aligned with the reality of the situation and the terms that were originally agreed upon. The Court of Appeal's decision underscored the importance of adhering to the conditions set forth during sentencing, especially those that involve commitments to provide evidence in future proceedings. This case highlights the consequences that may follow when a party fails to uphold their end of a sentencing agreement and the need for sentences to be reviewed in such circumstances.

Orders