R v David KERTEBANI; David KERTEBANI v R [2010] NSWCCA 221

R v David KERTEBANI; David KERTEBANI v R [2010] NSWCCA 221

The application to adduce fresh evidence was refused as the evidence did not reveal any special or unusual circumstance beyond what was already before the sentencing judge. The Crown appeal was dismissed as there was no error in the judge's reasoning, and the sentence, while at the low end, was within an appropriate range. The offender’s appeal was dismissed as there was no failure by the sentencing judge to consider relevant objective or subjective factors, nor did the family hardship reach the threshold of exceptional circumstances to warrant a non-custodial sentence.

Parties
Respondent: David Kertebani; Applicant: David Kertebani; Respondent: Commonwealth Crown
Jurisdiction
Australia
Judgment Date
26 October 2010
Procedural Posture
Criminal Appeal / Judgment on Sentence Appeals by Crown and Offender; Application to Adduce Fresh Evidence
Outcome
1. Respondent's application to adduce fresh evidence refused. 2. Crown appeal against sentence dismissed. 3. Respondent's application for leave to appeal against sentence granted but the appeal is dismissed.
Legal Topics
Sentence Appeals, Obtaining a Financial Advantage by Deception, Application to Adduce Fresh Evidence, Effect of Imprisonment on Offender's Family
Criminal Law Sentence Appeals Obtaining a Financial Advantage by Deception Application to Adduce Fresh Evidence Effect of Imprisonment on Offender's Family

Case Brief

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Parties

David Kertebani

Respondent

David Kertebani

Applicant

Commonwealth Crown

Respondent

Procedural Posture

Criminal Appeal / Judgment on Sentence Appeals by Crown and Offender; Application to Adduce Fresh Evidence

Legal Issues

  1. 1 Whether fresh evidence regarding the offender’s wife's mental health should be admitted
  2. 2 Whether Crown appeal revealed latent or manifest error in sentence imposed
  3. 3 Whether sentencing judge misunderstood objective seriousness of offence

Ratio Decidendi

The application to adduce fresh evidence was refused as the evidence did not reveal any special or unusual circumstance beyond what was already before the sentencing judge. The Crown appeal was dismissed as there was no error in the judge's reasoning, and the sentence, while at the low end, was within an appropriate range. The offender’s appeal was dismissed as there was no failure by the sentencing judge to consider relevant objective or subjective factors, nor did the family hardship reach the threshold of exceptional circumstances to warrant a non-custodial sentence.

Court Disposition

1. Respondent's application to adduce fresh evidence refused. 2. Crown appeal against sentence dismissed. 3. Respondent's application for leave to appeal against sentence granted but the appeal is dismissed.

Orders

  • Respondent's application to adduce fresh evidence is refused.
  • Crown appeal against sentence is dismissed.