R v Kitchener [2003] NSWCCA 134

R v Kitchener [2003] NSWCCA 134

The proportionality and manifest excess grounds failed because May, Snow, Tesic and Parkinson were not sufficiently comparable to dictate the applicant's sentence, and the applicant's prior drug offending, offending while on parole and need for specific deterrence justified substantial sentences. However, the double punishment ground was made out: the applicant served the balance of parole in fact because of the present offences, while the sentences were also increased because the offences were committed on parole. To avoid that double counting, the sentences were quashed and reimposed with a commencement date of 1 January 2001.

Jurisdiction
Australia
Judgment Date
13 May 2003
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal Sentence Appeal From District Court Sentences Imposed After Guilty Pleas
Outcome
Leave to appeal granted; appeals allowed; sentences quashed; applicant resentenced with adjusted commencement date.
Legal Topics
['supply of Methylamphetamine' 'commercial Quantity' 'severity Appeal' 'proportionality' 'parity' 'double Punishment' 'parole Revocation' 'specific Deterrence' 'manifest Excess']
['criminal Law' 'sentencing' 'drug Offences'] ['supply of Methylamphetamine' 'commercial Quantity' 'severity Appeal' 'proportionality' 'parity' 'double Punishment' 'parole Revocation' 'specific Deterrence' 'manifest Excess']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal Sentence Appeal From District Court Sentences Imposed After Guilty Pleas

Legal Issues

  1. 1 ['Whether the sentences were manifestly excessive and overstated the objective gravity of the offences.' 'Whether the sentences lacked proportionality when compared with sentences imposed on May, Snow, Tesic and Parkinson.' 'Whether the sentences gave the appearance of double punishment because the offences were treated as aggravated by being committed while on parole and no sufficient allowance was made for custody served after parole revocation.' "Whether the sentencing judge erred in fixing the commencement date of the sentences and in failing to allow for seven days' pre-sentence custody."]

Ratio Decidendi

The proportionality and manifest excess grounds failed because May, Snow, Tesic and Parkinson were not sufficiently comparable to dictate the applicant's sentence, and the applicant's prior drug offending, offending while on parole and need for specific deterrence justified substantial sentences. However, the double punishment ground was made out: the applicant served the balance of parole in fact because of the present offences, while the sentences were also increased because the offences were committed on parole. To avoid that double counting, the sentences were quashed and reimposed with a commencement date of 1 January 2001.

Court Disposition

Leave to appeal granted; appeals allowed; sentences quashed; applicant resentenced with adjusted commencement date.

Orders

  • ['Leave to appeal be granted.' 'The appeals be allowed, the sentences quashed.' 'Count one: imprisonment for a fixed term of four years and six months to commence from 1 January 2001 and expire on 30 June 2005.' 'Count two: imprisonment for eight years to commence from 1 January 2001 and expire on 31 December 2008;...