Regina v Kym - [2002] NSWCCA 235

CITATION: Regina v Kym [2002] NSWCCA 235

FILE NUMBER(S): CCA 60849/01

HEARING DATE(S): 10 May 2002

JUDGMENT DATE:
10 May 2002

PARTIES :

Regina v Peter Kym

JUDGMENT OF: Newman AJ at 1; Carruthers AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0339

LOWER COURT JUDICIAL
OFFICER : Her Honour Judge Karpin

COUNSEL : Applicant - C.B. Craigie
Crown - P. Barrett

SOLICITORS: Applicant - D.J. Humphreys
Crown - S.E. O'Connor

CATCHWORDS: Application for leave to appeal against sentence to be served by way of periodic detention - Parole Board revoked sentence - whether Court of Criminal Appeal has jurisdiction to hear appeal from original sentence - question considered but not necessary to decide - even if Court had jurisdiction to hear appeal no error by sentencing judge demonstrated.

LEGISLATION CITED: Crimes Act 1900, s 300(2)
Crimes (Administration of Sentences) Act 1999,
ss 81(a), 83(1)(a), 163(2)(a); 176
Crimes (Sentencing procedure) Act 199, ss 6, 44(1), 45

CASES CITED:
R v Halabi CCA unreported 17/2/92
R v Wegener [1999] NSWCCA 405

DECISION: Application for extension of time refused.

60849/01

NEWMAN AJ
CARRUTHERS AJ
Friday, 10 May 2002

REGINA v Peter KYM

Judgment

1 NEWMAN AJ: I agree with the reasons of the order proposed by my brother Carruthers AJ. In my view in determining the question of whether or not this Court should grant an extension of time to appeal, that the merits of the appeal itself would not cause this Court to intervene.

2 Accordingly, I join with my brother. The order of the Court will be as proposed by Carruthers AJ.

3 CARRUTHERS AJ: It is necessary to commence this judgment by reference to the factual background. On 25 May 2000, the applicant, Peter Kym, was sentenced by her Honour Karpin DCJ to two years periodic detention in relation to one count of using a false instrument pursuant to s 300(2) of the Crimes Act 1900. This offence carries a maximum penalty of ten years imprisonment. The applicant’s periodic detention order was revoked on 6 September 2000, as he failed to comply with its terms, and the sentence was converted by the Parole Board pursuant to s 163(2)(a) of the Crimes (Administration of Sentences) Act 1999, to one of a fixed term of imprisonment of two years and one month commencing on 8 May 2001, and expiring on 7 June 2003. The additional term of one months imprisonment was imposed because the applicant failed to attend in accordance with the requirements of the periodic detention order on a net four occasions: see Crimes (Administration of Sentences) Act 1999, ss 81(a), 83(1)(a).

4 The application for leave to appeal is dated 4 December 2001. It seeks an extension of time in which to appeal from the sentence imposed by Judge Karpin on 25 May 2000. There is reference in the application for leave to appeal to delays occasioned by the necessity to have the matter dealt with by the Legal Aid Commission. When…

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 Regina v Kym

Details

AGLC: Regina v Kym [2002] NSWCCA 235
Case: [2002] NSWCCA 235
Decision Date: 10 May 2002

CaseChat Overview and Summary

The case of Regina v Kym involved an application for leave to appeal against a sentence that was to be served by way of periodic detention. The respondent had had their sentence revoked by the Parole Board, and the applicant sought to appeal against the original sentence. The matter was before the Court of Criminal Appeal, which was tasked with determining the legal issues raised by the application.

The central legal issue was whether the Court of Criminal Appeal had the jurisdiction to hear an appeal from the original sentence, particularly in the context of a sentence that had been revoked by the Parole Board. The Court considered this question but ultimately found it unnecessary to decide, as the applicant had not demonstrated any error by the sentencing judge. Even if the Court did have jurisdiction, the applicant needed to show that the original sentence was flawed to warrant an appeal.

In reaching its decision, the Court noted that the applicant had not provided any evidence to demonstrate that the original sentence was incorrect. Consequently, the Court concluded that there was no basis for allowing the appeal. The Court of Criminal Appeal held that, even if it had the jurisdiction to hear an appeal from the original sentence, the applicant had not shown any error in the sentencing process that would warrant a review. As such, the application for leave to appeal was dismissed.

The Court did not need to make any final orders as the application for leave to appeal was dismissed outright. The applicant's request to appeal the original sentence was denied, and the matter was concluded without further orders being made by the Court of Criminal Appeal.

Orders