Kiss v R [2021] NSWCCA 158

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kiss v R [2021] NSWCCA 158 Hearing dates: 17 March 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Before: Simpson AJA at [1] Bellew J at [111] Wilson J at [112] Decision: Proceedings 2014/211316: (1) the time in which to apply for leave to appeal is extended to 4 November 2020; (2) leave to appeal against sentence is granted; (3) appeal allowed, sentence imposed on 28 October 2016 is quashed; (4) in lieu thereof the applicant be sentenced to an aggregate term of imprisonment made up of a non-parole period of 6 years and 4 months, commencing on 24 April 2016 and expiring on 23 August 2022, with a balance of term of 2 years and 2 months which will expire on 23 October 2024. Proceedings 2014/314401: (1) leave to appeal granted; (2) the commencement date of the sentence is varied; sentence to commence on 23 August 2019, and expire on 22 August 2032; non-parole period to expire on 22 February 2028; (3) appeal otherwise dismissed. Catchwords: SENTENCING – appeal against sentence – money laundering offences – co-offenders – disparity between sentences – first co-offender's sentence reduced on appeal due on parity principles – applicant faced charges carrying significantly lower penalties than those faced by second co-offender but applicant's sentence significantly more severe – legitimate sense of grievance demonstrated – sentence set aside – sentencing discretion re-exercised – adjustment achieved by restoring proportions with first co-offender's sentence SENTENCING – appeal against sentence – sexual assault offences – whether primary judge erred in assessing objective seriousness – whether applicant had actual knowledge of absence of consent – knowledge clearly established as absence of consent manifest by violent assaults which preceded sexual assaults – whether offences less serious where committed in context of ongoing consensual relationship – no principle that sexual assault committed in prior or existing relationship is, for that reason alone, less serious than one committed by a stranger – Bussey v R [2020] NSWCCA 280 SENTENCING – appeal against sentence – whether level of accumulation resulted in overall manifestly excessive sentence – sentence lengthy but justified – no error by primary judge established Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Prevention of Cruelty to Animals Act 1979 (NSW) Cases Cited: Berry, Arthur John (1988) 10 Cr App R (S) 13 Bussey v R [2020] NSWCCA 280 Cox, David Edward (1985) 7 Cr App R (S) 422 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Halliday (Court of Criminal Appeal (VIC), 21 March 1990, unrep) Humphreys v R [2020] NSWCCA 144 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Lyttle, James Augustine (1991) 57 A Crim R 398 NM v R [2012] NSWCCA 215 R v Harris [1998] 4 VR 21 R v Mason [2001] VSCA 62 Saffin v R [2020] NSWCCA 246 Stephens, Kane Raymond (1994) 76 A Crim R 5 Stockwell, Roger Clive (1984) 6 Cr App R (S) 84 Wiren, John Anthony (1996) 89 A Crim R 356 Category: Principal judgment Parties: Daniel George Charles Kiss (Applicant) The Crown Representation: Counsel: S Kluss (Applicant) G Newton (Crown)