Kirby v R [2021] NSWCCA 162

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kirby v R [2021] NSWCCA 162 Hearing dates: 31 May 2021 Date of orders: 19 July 2021 Decision date: 19 July 2021 Before: Harrison J at [1] Beech-Jones J at [2] Cavanagh J at [49] Decision: (1) Grant the applicant leave to appeal against sentence. (2) Dismiss the appeal. Catchwords: SENTENCING – police officer victim of offence under s 33B(1) of Crimes Act – whether erroneous to refer to their status as aggravating circumstance – no error established - sentencing judge only considered status of victim in characterising objective seriousness of offence - alleged double punishment revealed by indicative sentences – no common elements – sentence not manifestly excessive – leave to appeal granted but appeal dismissed. 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) Cases Cited: BJS v R [2013] NSWCCA 123 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 JM v R [2014] NSWCCA 297 Lee v R [2020] NSWCCA 244 PD v R [2012] NSWCCA 242 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 Portolesi v R [2012] NSWCCA 157 Category: Principal judgment Parties: Neil Mark Kirby (Applicant) Regina (Crown) Representation: Counsel: Mr S Lawrence (Applicant) Ms E Wilkins SC (Crown)