R v Kihara [2020] NSWDC 88

R v Kihara [2020] NSWDC 88

The offending was within the mid-range of objective seriousness for s 86(2)(b) because, although the detention was brief and not pre-planned, the offender locked the victim in his unit, detained her to elicit information about his guitar, assaulted her repeatedly, used or threatened a meat cleaver, threw her 5.4 metres from a balcony onto concrete and caused serious actual bodily harm. Full-time imprisonment was required. The offender's mental illness reduced moral culpability, reduced the weight of general deterrence and made custody more onerous, but specific deterrence and community protection remained important. Special circumstances justified a varied ratio between the head sentence...

Jurisdiction
Australia
Judgment Date
02 April 2020
Procedural Posture
Criminal Sentence / Sentence Hearing After Early Plea of Guilty
Outcome
Offender convicted and sentenced to full-time imprisonment for 3 years and 9 months with a non-parole period of 2 years, commencing 20 January 2019.
Legal Topics
['detain With Intent to Obtain Advantage and Occasion Actual Bodily Harm' 'objective Seriousness' 'aggravating and Mitigating Factors' 'mental Illness in Sentencing' 'special Circumstances' 'full Time Imprisonment']
['criminal Law' 'sentencing'] ['detain With Intent to Obtain Advantage and Occasion Actual Bodily Harm' 'objective Seriousness' 'aggravating and Mitigating Factors' 'mental Illness in Sentencing' 'special Circumstances' 'full Time Imprisonment']

Case Brief

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Procedural Posture

Criminal Sentence / Sentence Hearing After Early Plea of Guilty

Legal Issues

  1. 1 ['What was the objective seriousness of the offence under s 86(2)(b) of the Crimes Act 1900.' 'What aggravating and mitigating factors applied under s 21A of the Crimes (Sentencing Procedure) Act 1999.' "How the offender's mental illness affected moral culpability, general deterrence, specific deterrence and the onerousness of custody." 'Whether special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established.' 'What sentence should be imposed.']

Ratio Decidendi

The offending was within the mid-range of objective seriousness for s 86(2)(b) because, although the detention was brief and not pre-planned, the offender locked the victim in his unit, detained her to elicit information about his guitar, assaulted her repeatedly, used or threatened a meat cleaver, threw her 5.4 metres from a balcony onto concrete and caused serious actual bodily harm. Full-time imprisonment was required. The offender's mental illness reduced moral culpability, reduced the weight of general deterrence and made custody more onerous, but specific deterrence and community protection remained important. Special circumstances justified a varied ratio between the head sentence...

Court Disposition

Offender convicted and sentenced to full-time imprisonment for 3 years and 9 months with a non-parole period of 2 years, commencing 20 January 2019.

Orders

  • ['Jimm Wallace Kihara is convicted of detain with intention to obtain advantage and occasion actual bodily harm pursuant to s 86(2)(b) of the Crimes Act 1900.' 'The offender is sentenced to a non-parole period of 2 years to commence on 20 January 2019 and to terminate on 19 January 2021.' 'The balance of the term is...