R v Powell - [2024] NSWDC 589

District Court

New South Wales

Medium Neutral Citation: R v Powell [2024] NSWDC 589
Hearing dates: 25 September 2024
Date of orders: 25 September 2024
Decision date: 25 September 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence of imprisonment of 4 years 1 month with a non-parole period of 2 years and 8 months

Catchwords:
CRIME — Property offences — Destroying or damaging property by fire
SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Victim Impact — Moral culpability — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis — Mental illness — Mental and personality disorders — Drug addiction —childhood sexual abuse — Childhood trauma — Considerable time spent in juvenile and adult custody

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmyv The Queen (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Engert v R (1995) 84 A Crim R 67
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nasrallah v R [2021] NSWCCA 207
Porter v R [2008] NSWCCA 145
R v Geddes (1936) 36 SR (NSW) 554
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Verdins [2007] VSCA 102
R v Windle [2012] NSWCCA 222
Ryan v The Queen (2001) 206 CLR 267
Veen v R (No 2) [1988] HCA 14; 164 CLR 465

Category: Sentence
Parties: Kiall Stephen Powell (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
A Booker (for the offender)
Solicitors:
Morrison s Law (for the offender)
J Loosley solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/259865

JUDGMENT – ex tempore revised

Agreed Facts for sentence

At 6.30 in the morning on 24 June 2023, Kiall Powell and a woman friend went to a house in Albion Park. Powell knew the tenant of the premises, but the tenant and his partner were away that morning. The premises had CCTV and that CCTV could be monitored from the tenant’s mobile phone. Powell spent some time waiting at the premises. Shortly before 10.30am he set a fire at the rear of the home. He and his friend then left.
The fire spread rapidly. Nearby construction workers saw the smoke and called emergency services, who were soon on the scene. By then the property was well alight and the firefighters were unable to save the premises. Photographs attached to the brief of evidence show the extent of the damage, which was effectively complete. The roof and internal features of the premises were totally destroyed; only the external structure remains.
The fire not only caused extensive damage to the premises, the tenant and his partner lost all…

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 Powell

Details

AGLC: R v Powell [2024] NSWDC 589
Case: [2024] NSWDC 589
Decision Date: 25 September 2024

CaseChat Overview and Summary

The defendant in this case, Powell, was charged with damaging property by fire. The matter was heard in the County Court of Victoria. The primary legal issues addressed by the court were the sentencing guidelines, the mitigating and aggravating factors to be considered, and the appropriate penalty for the crime committed. The court had to balance the purposes of sentencing, including deterrence, victim impact, moral culpability, and the objective seriousness of the offence, against the defendant's personal circumstances and history.

In determining the appropriate sentence, the court considered various factors, including the defendant's extensive criminal history, his breach of conditional liberty, and the mitigating factor of his early guilty plea. The court also took into account the defendant's mental health issues, drug addiction, and history of childhood sexual abuse and trauma. Despite the significant mitigating factors, the court found that the offence was of high objective seriousness, and the defendant's previous convictions and breach of conditional liberty were aggravating factors.

The court ultimately decided that the most appropriate sentence was imprisonment for a term of 4 years and 1 month, with a non-parole period of 2 years and 8 months. The court emphasised the importance of deterrence and the need to protect the community, while also acknowledging the defendant's personal circumstances. The court concluded that the sentence imposed would adequately fulfil the purposes of sentencing in this case.

Orders

Orders of the court

Sentence of imprisonment of 4 years 1 month with a non-parole period of 2 years and 8 months

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 Powell [2024] NSWDC 589
Hearing dates:	25 September 2024
Date of orders:	25 September 2024
Decision date:	25 September 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence of imprisonment of 4 years 1 month with a non-parole period of 2 years and 8 months
Catchwords:	CRIME — Property offences — Destroying or damaging property by fire SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Victim Impact — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis — Mental illness — Mental and personality disorders — Drug addiction —childhood sexual abuse — Childhood trauma — Considerable time spent in juvenile and adult custody
Legislation Cited:	Crimes Act1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmyv The Queen (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Engert v R (1995) 84 A Crim R 67 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Nasrallah v R [2021] NSWCCA 207 Porter v R [2008] NSWCCA 145 R v Geddes (1936) 36 SR (NSW) 554 R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Verdins [2007] VSCA 102 R v Windle [2012] NSWCCA 222 Ryan v The Queen (2001) 206 CLR 267 Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category:	Sentence
Parties:	Kiall Stephen Powell (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: A Booker (for the offender) Solicitors: Morrison s Law (for the offender) J Loosley solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/259865