Kaiser v R [2009] NSWCCA 130

Kaiser v R [2009] NSWCCA 130

The applicant was the instigator, planner, and intended beneficiary of the offence, with careful planning and awareness that a weapon would be discharged. The difference in sentence between applicant and co-offender was justified by the applicant’s greater criminality and additional drug offence. The sentencing judge’s overstatement regarding the applicant’s awareness of the risk of death did not warrant appellate intervention. There was no error in the modest discount for the plea or overall assessment of relevant factors, and the sentence was not manifestly excessive.

Jurisdiction
Australia
Judgment Date
29 April 2009
Procedural Posture
Criminal Appeal / Sentence Appeal – Leave to Appeal Granted, Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
['manslaughter' 'sentencing' 'appeal Against Sentence' 'parity of Sentences' 'remorse' 'utilitarian Discount' 'manifest Excess' 'dangerous Acts Causing Death']
['criminal Law'] ['manslaughter' 'sentencing' 'appeal Against Sentence' 'parity of Sentences' 'remorse' 'utilitarian Discount' 'manifest Excess' 'dangerous Acts Causing Death']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Appeal / Sentence Appeal – Leave to Appeal Granted, Appeal Dismissed

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the respective criminality of the applicant and co-offender were about the same' "Whether the applicant has a justifiable sense of grievance due to disparity with co-offender's sentence" 'Whether the sentencing judge erred in finding the applicant realised co-offender might kill the deceased' 'Failure to quantify discount for plea of guilty' 'Whether the sentence is manifestly excessive; whether a less severe sentence is warranted']

Ratio Decidendi

The applicant was the instigator, planner, and intended beneficiary of the offence, with careful planning and awareness that a weapon would be discharged. The difference in sentence between applicant and co-offender was justified by the applicant’s greater criminality and additional drug offence. The sentencing judge’s overstatement regarding the applicant’s awareness of the risk of death did not warrant appellate intervention. There was no error in the modest discount for the plea or overall assessment of relevant factors, and the sentence was not manifestly excessive.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

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