R v Kay [2004] NSWCCA 130

R v Kay [2004] NSWCCA 130

The Todd, Mill and Abookahled line of authority did not apply because the delay was not caused by the criminal justice system preventing the applicant from being sentenced earlier, and before the DNA match and arrest the applicant was not awaiting sentence in a state of relevant uncertainty but had remained silent about his guilt. In any event, Solomon DCJ had taken delay, rehabilitation and totality into account, and given the seriousness of the offence and aggravating factors no lesser sentence was warranted.

Jurisdiction
Australia
Judgment Date
05 May 2004
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal
Outcome
Application for leave to appeal granted but appeal dismissed.
Legal Topics
['break, Enter and Steal' 'delay in Prosecution or Sentencing' 'rehabilitation' 'totality Principle' 'conditional Liberty' 'severity Appeal']
['criminal Law' 'sentencing'] ['break, Enter and Steal' 'delay in Prosecution or Sentencing' 'rehabilitation' 'totality Principle' 'conditional Liberty' 'severity Appeal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the sentencing judge failed adequately to take into account alleged significant delay in prosecution and steps towards rehabilitation.' 'Whether the circumstances attracted the principle in R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59.' 'Whether, if error were shown, no lesser sentence was warranted under s 6(3) Criminal Appeal Act 1912 (NSW).']

Ratio Decidendi

The Todd, Mill and Abookahled line of authority did not apply because the delay was not caused by the criminal justice system preventing the applicant from being sentenced earlier, and before the DNA match and arrest the applicant was not awaiting sentence in a state of relevant uncertainty but had remained silent about his guilt. In any event, Solomon DCJ had taken delay, rehabilitation and totality into account, and given the seriousness of the offence and aggravating factors no lesser sentence was warranted.

Court Disposition

Application for leave to appeal granted but appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']