Kirby v R [2021] NSWCCA 162

Kirby v R [2021] NSWCCA 162

No sentencing error was established. The judge did not impermissibly treat the police officer victim's status as an aggravating factor on count 4, but used it cautiously as part of assessing objective criminality. Counts 4 and 5 did not involve a common act or element requiring a discount for double punishment, and the aggregate sentence showed that totality had been considered and applied. Having regard to the seriousness of the domestic violence choking, the machete attack on a police officer, the applicant's criminal record, guarded rehabilitation prospects and the Bugmy material, neither the indicative sentences nor the aggregate sentence were manifestly excessive.

Jurisdiction
Australia
Judgment Date
19 July 2021
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court After a Judge Alone Trial
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['aggregate Sentence' 'assault Police' 'use Weapon With Intent to Assault Police' 'domestic Violence Offending' 'objective Seriousness' 'aggravating Factors' 'double Punishment' 'totality Principle' 'manifest Excess' 'bugmy Principles']
['criminal Law' 'sentencing'] ['aggregate Sentence' 'assault Police' 'use Weapon With Intent to Assault Police' 'domestic Violence Offending' 'objective Seriousness' 'aggravating Factors' 'double Punishment' 'totality Principle' 'manifest Excess' 'bugmy Principles']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against an Aggregate Sentence Imposed in the District Court After a Judge Alone Trial

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account as an aggravating factor on count 4 that the victim was a police officer.' 'Whether the sentencing judge erred in applying the totality principle and avoiding double punishment when sentencing for counts 4 and 5.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

No sentencing error was established. The judge did not impermissibly treat the police officer victim's status as an aggravating factor on count 4, but used it cautiously as part of assessing objective criminality. Counts 4 and 5 did not involve a common act or element requiring a discount for double punishment, and the aggregate sentence showed that totality had been considered and applied. Having regard to the seriousness of the domestic violence choking, the machete attack on a police officer, the applicant's criminal record, guarded rehabilitation prospects and the Bugmy material, neither the indicative sentences nor the aggregate sentence were manifestly excessive.

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal against sentence.' 'Dismiss the appeal.']