Kentwell v R (No 2) [2015] NSWCCA 96

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kentwell v R (No 2) [2015] NSWCCA 96 Hearing dates: 16 March 2015 Date of orders: 21 May 2015 Decision date: 21 May 2015 Before: Bathurst CJ: [1] Rothman J: [16] McCallum J: [100] Decision: Extend the time for bringing an application for leave to appeal up to and including 28 June 2013. Grant the applicant leave to appeal against the sentence imposed on him on 20 February 2009. Allow the appeal. The sentences imposed by the District Court on 20 February 2009 on the applicant be quashed and the following sentences be passed in substitution therefor: Count 1: recklessly cause grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), a non-parole period of 3 years and 6 months commencing 6 April 2008 and concluding 5 October 2011 with a remainder of term of 18 months concluding 5 April 2013; Count 3: malicious damage, contrary to s 195(1)(a) of the Crimes Act 1900, a fixed term of 1 month to commence 6 April 2008 and conclude 5 May 2008; Count 4: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, a non-parole period of 4 years, commencing 2 April 2010 and concluding 1 April 2014 with a remainder of term of 1 year concluding 1 April 2015; Count 5: assault, contrary to s 61 of the Crimes Act 1900, a fixed term of 3 months, commencing 2 April 2010 and concluding 1 July 2010; Count 7: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, a non-parole period of 4 years, commencing 6 August 2011 and concluding 5 August 2015 with a remainder of term of 4 years concluding 5 August 2019. The overall sentence is imprisonment of 11 years and 4 months consisting of an overall non-parole period of 7 years and 4 months, commencing 6 April 2008 and concluding 5 August 2015, with a remainder of term of a further 4 years concluding 5 August 2019. The applicant is first eligible for parole on 6 August 2015. Catchwords: CRIMINAL LAW – appeal against sentence – Muldrock error – error in using finding of special circumstances to increase head sentence – error in imposing fixed sentence for offence with standard non-parole period – whether error in sentencing judge's treatment of psychiatric evidence not considered as other grounds of appeal established APPEAL – extension of time granted as error disclosed and as in interests of justice – consideration of operation of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal granted as error not immaterial – court of appeal to re-exercise the sentencing discretion afresh – CRIMINAL LAW – SENTENCING – objective circumstances of offending were serious – subjective circumstances of appellant lessen need for specific and general deterrence – appellant's social exclusion from Aboriginal culture contributed to his offending– sentence reduced to 7 years and 4 months non parole with the balance of term being 4 years Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 House v The King [1936] HCA 40; (1936) 55 CLR 499 Johnson v The Queen [2004] HCA 15; (2004) ALJR 616 Kennedy v R [2010] NSWCCA 260 Kentwell v R [2013] NSWCCA 266 Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 R v Burke [2002] NSWCCA 353 R v Fernando (1992) 76 A Crim R 58 R v Price [2005] NSWCCA 285 R v Lewis [2014] NSWSC 1127 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Phillip Kentwell (Accused) Regina (Crown) Representation: Counsel: G. Bashir SC/with J. Roy (Applicant) J. Girdham SC (Crown)