NSW Caselaw
New South Wales Court of Criminal Appeal
CITATION: KUTCHERA v REGINA [2007] NSWCCA 121
HEARING DATE(S): 24/04/07
JUDGMENT DATE: 4 May 2007
JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 50
DECISION: (i) leave to appeal be granted; (ii) appeal be granted in part; (iii) the sentence imposed by his Honour Marien DCJ be confirmed save and except that the execution of the whole of the sentence be suspended until 5 June 2008 and that the applicant be released from custody on condition that he enter into a good behaviour bond for a term expiring on 5 June 2008.
CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL – error of law to preclude capacity to suspend sentence – aberrant behaviour – absence of damage to any person or property – significant subjective factors – appeal granted – imprisonment suspended.
Crimes Act 1900 (NSW) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
De Simoni (1981) 147 CLR 383 Dinsdale v The Queen (2000) 202 CLR 321 GAS v The Queen (2004) 217 CLR 198 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 78 ALJR 616 CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048 R v Boulghourgian (2001) 125 A Crim R 540 R v Mill (1988) 166 CLR 59 R v Simpson (2001) 53 NSWLR 704 R v Todd [1982] 2 NSWLR 517 R v Zamagias [2002] NSWCCA 17
PARTIES: Samuel KUTCHERA (Applicant) REGINA (Respondent)
FILE NUMBER(S): CCA 2007/845
COUNSEL: Self (Applicant) V. Lydiard (Respondent)
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