Regina v Peter James Krempin - [2003] NSWCCA 263

Reported Decision:
142 A Crim R 56

New South Wales

Court of Criminal Appeal

CITATION: Regina v Peter James Krempin [2003] NSWCCA 263 revised - 17/09/2003

HEARING DATE(S): 9 September 2003

JUDGMENT DATE:
9 September 2003

JUDGMENT OF: Hidden J at 49; Greg James J at 50; Bergin J at 1

DECISION: Leave to appeal granted. In lieu of non-parole period of 21 months fixed by the sentencing judge, the Court fixed a non-parole period of 18 months.

CATCHWORDS: Criminal Law - Application for leave to appeal in respect of sentence - whether the sentencing judge properly took into account the Applicant's mental disorder.

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED: R v Engert (1995) 84 A Crim R 67
R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 255
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48

PARTIES :
Peter James Krempin (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 60202/03

COUNSEL: Mr H Dhanji (Applicant)
Ms E Wilkins (Respondent)

SOLICITORS: Brian J. Sandland / Legal Aid Commission
of New South Wales (Applicant)
Director of Public Prosecutions (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0331

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

- 19 -

60202/03

HIDDEN J
GREG JAMES J
BERGIN J

9 September 2003

REGINA v PETER JAMES KREMPIN

Judgment

1 BERGIN J: The applicant, Peter James Krempin, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Coolahan at Newcastle District Court on 5 December 2002. The applicant pleaded guilty to one count of armed robbery with an offensive weapon and one count of assault with intent to rob armed with an offensive weapon under s97(1) of the Crimes Act 1900 (the Act). The maximum penalty under the Act is twenty years imprisonment.

2 The applicant was sentenced to concurrent sentences of four years imprisonment on each offence to commence on 19 November 2002 and expire on 18 November 2006. The sentencing Judge fixed a non-parole period of twenty-one months to expire on 18 August 2004.

3 The two offences for which the applicant was sentenced occurred on the night of 18 June 2002. At 6.30pm the applicant went into the shop area of the Ampol service station in Hamilton, a suburb of Newcastle, walked behind the counter and held a Swiss army knife close to the attendant’s right side at his rib area. He directed the attendant to open the drawer and to get the money out pointing the knife towards the cash register and then once again holding it at the attendant’s waist.

4 The attendant opened the drawer and gave the applicant $150 in bank notes. The applicant then directed the attendant to get down onto the floor and remain there for thirty seconds. He then left the service station area.

5 At about 9.40pm that night the applicant went into the shop at the Mobil service station in Newcastle West…

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 Peter James Krempin

Details

AGLC: Regina v Peter James Krempin [2003] NSWCCA 263
Case: [2003] NSWCCA 263
Decision Date: 9 September 2003

CaseChat Overview and Summary

In Regina v Peter James Krempin, the applicant sought leave to appeal against his sentence, arguing that the sentencing judge had failed to adequately consider his mental disorder. The case came before the court, which was tasked with determining whether the sentencing judge's approach to the applicant's mental health was appropriate and whether there were grounds for leave to appeal. The court examined the sentencing remarks and the submissions made by both parties to assess whether the judge had erred in his consideration of the applicant's mental condition.

The primary legal issue was whether the sentencing judge had correctly assessed and factored in the applicant's mental disorder when determining the appropriate penalty. The applicant's legal team argued that the judge had not sufficiently acknowledged the impact of the mental disorder on the applicant's capacity to control his actions, which in turn affected the severity of the sentence imposed. The prosecution maintained that the judge had appropriately balanced the mitigating effects of the mental disorder with the gravity of the offence committed.

The court reviewed the sentencing judge's remarks and concluded that while the judge had recognised the applicant's mental disorder, there was an insufficient analysis of how this condition influenced the applicant's culpability and the nature of the offence. The court found that the sentencing remarks did not adequately address the extent to which the mental disorder mitigated the applicant's responsibility, leading to an outcome where the judge had not fully appreciated the interplay between the mental disorder and the crime. Consequently, the court granted the applicant leave to appeal, finding that the sentencing judge's approach was flawed and required further judicial scrutiny.

Orders