Kutschera v R [2015] NSWCCA 73

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kutschera v R [2015] NSWCCA 73 Hearing dates: 20 April 2015 Decision date: 27 April 2015 Before: Hoeben CJ at CL at [1] Hall J at [39] R A Hulme J at [40] Decision: The application for an extension of time within which to apply for leave to appeal against sentence is granted.

Leave to appeal against sentence is granted.

The appeal against sentence is allowed.

The sentence imposed by Fullerton J on 28 November 2008 is quashed and in lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years to commence 21 July 2007 and to expire 20 July 2025, with a balance of term of 6 years expiring 20 July 2031. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence out of time – offence of murder – existence of "Muldrock error" conceded – extension of time should be allowed – need to re-sentence – availability of additional information to be taken into account on re-sentence – on re-sentence a lesser sentence warranted in law. Legislation Cited: Criminal Appeal Act 1912 – s6(3) Cases Cited: Abdul v R [2013] NSWCCA 247 Kentwell v The Queen [2014] HCA 37, 313 ALR 451 Kutschera v R [2010] NSWCCA 150 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Grady v The Queen [2014] HCA 38 R v Hall [2001] NSWCCA 202 R v Michael Kutschera [2008] NSWSC 1271 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: Michael Kutschera – Applicant Regina – Respondent Crown Representation: Counsel: Ms R Burgess – Applicant Mr K McKay – Respondent Crown