Kiss v R [2021] NSWCCA 158

Kiss v R [2021] NSWCCA 158

For proceedings 2014/211316, the applicant, like Humphreys, faced offences carrying significantly lower maximum penalties than Barnes but received a significantly more severe sentence; no role or personal circumstance justified that discrepancy, so a legitimate sense of grievance was established and the sentence was quashed and re-imposed by restoring the proportional relationship with Humphreys' reduced sentence. For proceedings 2014/314401, the sentencing judge did not err in finding actual knowledge of absence of consent or in assessing the sexual assaults as objectively serious; the prior relationship did not reduce seriousness; the accumulation was not erroneous and was if anything...

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Applications for Leave to Appeal Against Sentence in Criminal Proceedings / Court of Criminal Appeal Applications Concerning District Court Sentences Imposed on 28 October 2016 and 21 June 2019; Extension of Time Sought for the 28 October 2016 Sentence
Outcome
Proceedings 2014/211316: extension of time granted, leave granted, appeal allowed, sentence quashed and applicant resentenced. Proceedings 2014/314401: leave granted, commencement date varied, appeal otherwise dismissed.
Legal Topics
['money Laundering' 'parity Between Co Offenders' 'legitimate Sense of Grievance' 'sexual Intercourse Without Consent' 'domestic Violence' 'objective Seriousness' 'knowledge of Absence of Consent' 'accumulation and Totality' 'manifest Excess' 'non Parole Periods']
['criminal Law' 'sentencing' 'criminal Appeals'] ['money Laundering' 'parity Between Co Offenders' 'legitimate Sense of Grievance' 'sexual Intercourse Without Consent' 'domestic Violence' 'objective Seriousness' 'knowledge of Absence of Consent' 'accumulation and Totality' 'manifest Excess' 'non Parole Periods']

Case Brief

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Procedural Posture

Applications for Leave to Appeal Against Sentence in Criminal Proceedings / Court of Criminal Appeal Applications Concerning District Court Sentences Imposed on 28 October 2016 and 21 June 2019; Extension of Time Sought for the 28 October 2016 Sentence

Legal Issues

  1. 1 ["Whether the sentence for money laundering offences should be set aside because disparity with co-offenders' sentences gave rise to an objectively justifiable sense of grievance." 'Whether the sentencing judge erred in assessing the objective seriousness of the sexual intercourse without consent offences, including by finding actual knowledge of absence of consent.' 'Whether sexual assault committed in the context of an ongoing consensual relationship is, for that reason alone, less serious than sexual assault by a stranger.' 'Whether the level of accumulation of the 21 June 2019 sentence upon the earlier sentence caused overall manifest excess.' 'Whether the commencement date of the 21 June 2019 sentence should be varied after the money laundering sentence was varied.']

Ratio Decidendi

For proceedings 2014/211316, the applicant, like Humphreys, faced offences carrying significantly lower maximum penalties than Barnes but received a significantly more severe sentence; no role or personal circumstance justified that discrepancy, so a legitimate sense of grievance was established and the sentence was quashed and re-imposed by restoring the proportional relationship with Humphreys' reduced sentence. For proceedings 2014/314401, the sentencing judge did not err in finding actual knowledge of absence of consent or in assessing the sexual assaults as objectively serious; the prior relationship did not reduce seriousness; the accumulation was not erroneous and was if anything...

Court Disposition

Proceedings 2014/211316: extension of time granted, leave granted, appeal allowed, sentence quashed and applicant resentenced. Proceedings 2014/314401: leave granted, commencement date varied, appeal otherwise dismissed.

Orders

  • ['Proceedings 2014/211316: the time in which to apply for leave to appeal is extended to 4 November 2020.' 'Proceedings 2014/211316: leave to appeal against sentence is granted.' 'Proceedings 2014/211316: appeal allowed, sentence imposed on 28 October 2016 is quashed.' 'Proceedings 2014/211316: in lieu thereof the...