R v Pickering - [2023] NSWDC 425

District Court

New South Wales

Medium Neutral Citation: R v Pickering [2023] NSWDC 425
Hearing dates: 22 September 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Fulltime imprisonment. For orders see [92].

Catchwords:
CRIME – specially aggravated break enter and intentionally wound.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v MHK (2017) 267 A Crim R 235; [2017] VSCA 157
Fahs v Regina [2007] NSWCCA 26
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) A Crim R 149; [1999] NSWCCA 111
R v Israil [2002] NSWCCA 225
R v Millwood [2021] NSWCCA 2
R v Robinson [2014] NSWCCA 12

Category: Sentence
Parties: Director of Public Prosecutions (the Crown)
Kye Pickering (offender)
Representation:
Counsel:
Mr A Karim (offender)
Solicitors:
Mr Strainer (the Crown)

File Number(s): 22/45026
Publication restriction: Nil.

REMARKS on SENTENCE

The offender is to be sentenced in respect of an offence pursuant to s 112(3) of the Crimes Act 1900 of specially aggravated break enter and intentionally wound. The maximum penalty for the offence is 25 years imprisonment and there is a standard non-parole period prescribed of 7 years imprisonment.
The offence occurred on 13 February 2022 and the offender was arrested on 15 February 2022. He has been in custody since 15 February 2022 however on 20 July 2023 he was sentenced in respect of an earlier offence of aggravated break enter and steal in company pursuant to s 112(2) of the Crimes Act 1900 that he committed on 5 February 2022 some 8 days prior to the index offence. For that earlier offence he was sentenced to a term of imprisonment of 20 months with a non-parole period of 12 months commencing on 15 February 2022. That non-parole period expired on 14 February 2023.
The index offence was committed whilst the offender was on bail for two unrelated offences and also subject to a Conditional Release Order (“CRO”) and a Community Correction Order (“CCO”) in respect of unrelated offences. He was therefore on conditional liberty at the time of the offending.
The index offence was committed in company with three co-offenders who are referred to below. This was the circumstance of special aggravation in the charge, together with the offender intentionally wounding Mr G Raiola.

The sentence hearing

The sentence hearing took place on 22 September 2023. The Crown Sentence Summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows.
The offender was born on 2 January 1999 and was therefore 23 years of age at the time of the offence on 13 February 2022. In the early hours of that day the offender was in the company of Boston Risati (aged 25 years), Chad Robertson (aged 31 years) and Daniel…

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 Pickering

Details

AGLC: R v Pickering [2023] NSWDC 425
Case: [2023] NSWDC 425
Decision Date: 13 October 2023

CaseChat Overview and Summary

The case of R v Pickering involved the appellant, Pickering, who was charged with committing a specially aggravated break and enter and intentionally wounding a person. The matter was heard in the Supreme Court of Victoria. Pickering faced serious allegations, including breaking into a residence and causing significant harm to an individual during the course of the crime. The prosecution sought a conviction based on the appellant's actions that night.

The legal issues that required determination by the court included whether the prosecution had proven beyond reasonable doubt that Pickering had committed the offences as charged, and if so, whether the charges warranted the imposition of a custodial sentence. Specifically, the court had to assess whether the break and enter was specially aggravated by the presence of a weapon and the intentional wounding of a person. Additionally, the court needed to consider the appropriate penalty for these offences.

In delivering the judgment, the court carefully considered the evidence presented and the legal principles applicable to the case. The prosecution successfully demonstrated that Pickering had indeed broken into a residence with the intent to commit a crime, and that he had used a weapon during the incident. Furthermore, the court found that Pickering had intentionally caused harm to a person, fulfilling the criteria for the specially aggravated break and enter charge. After weighing the severity of the offences and the circumstances, the court concluded that a full-time imprisonment sentence was warranted. The court then proceeded to determine the specific term of imprisonment and other associated orders.

The court ordered Pickering to serve a term of imprisonment, with detailed sentencing orders provided in the judgment at [92]. The decision underscored the gravity of the offences committed and the necessity of imposing a penalty that reflected the seriousness of the crimes and their impact on the victim.

Orders

Orders of the court

Fulltime imprisonment. For orders see [92].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Pickering [2023] NSWDC 425
Hearing dates:	22 September 2023
Date of orders:	13 October 2023
Decision date:	13 October 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Fulltime imprisonment. For orders see [92].
Catchwords:	CRIME – specially aggravated break enter and intentionally wound.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v MHK (2017) 267 A Crim R 235; [2017] VSCA 157 Fahs v Regina [2007] NSWCCA 26 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) A Crim R 149; [1999] NSWCCA 111 R v Israil [2002] NSWCCA 225 R v Millwood [2021] NSWCCA 2 R v Robinson [2014] NSWCCA 12
Category:	Sentence
Parties:	Director of Public Prosecutions (the Crown) Kye Pickering (offender)
Representation:	Counsel: Mr A Karim (offender) Solicitors: Mr Strainer (the Crown)
File Number(s):	22/45026
Publication restriction:	Nil.