Regina v Kirkland [2005] NSWCCA 130

Regina v Kirkland [2005] NSWCCA 130

Although the sentencing judge erred in finding beyond reasonable doubt that the applicant knew Bobak had armed himself with the plasterer's hammer when they left the unit, that error had minimal effect on sentence. The offence was properly treated as warranting a sentence at the very upper end of the range for offences of its type, the sentence was not manifestly excessive, and the Court would have imposed the same sentence if re-sentencing.

Jurisdiction
Australia
Judgment Date
21 April 2005
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['maliciously Inflicting Grievous Bodily Harm With Intent' 'aggravated Break and Enter' 'worst Category of Cases' 'manifestly Excessive Sentence' 'aggravating Facts and Standard of Proof' 'joint Criminal Enterprise' 'standard Non Parole Periods']
['criminal Law' 'sentencing' 'criminal Appeals'] ['maliciously Inflicting Grievous Bodily Harm With Intent' 'aggravated Break and Enter' 'worst Category of Cases' 'manifestly Excessive Sentence' 'aggravating Facts and Standard of Proof' 'joint Criminal Enterprise' 'standard Non Parole Periods']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that the applicant knew, when leaving Bobak's unit, that Bobak had armed himself with the plasterer's hammer." 'Whether the sentencing judge erred in characterising the offence as at the upper end of seriousness, if not a worst category case.' 'Whether the sentencing judge wrongly used the sentence imposed on Bobak as a basis for sentencing the applicant.' 'Whether the sentence of imprisonment for twelve years with a non-parole period of eight years was manifestly excessive.' 'Whether standard non-parole period provisions could guide sentence for an offence committed before their commencement.']

Ratio Decidendi

Although the sentencing judge erred in finding beyond reasonable doubt that the applicant knew Bobak had armed himself with the plasterer's hammer when they left the unit, that error had minimal effect on sentence. The offence was properly treated as warranting a sentence at the very upper end of the range for offences of its type, the sentence was not manifestly excessive, and the Court would have imposed the same sentence if re-sentencing.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence is granted.' 'The appeal is dismissed.']