Kite v R [2021] NSWCCA 159

Kite v R [2021] NSWCCA 159

The sentencing judge expressly recognised that totality required partial, but not complete, accumulation with the applicant's existing sentences, yet by commencing the sentence on 1 February 2020 the sentence was wholly accumulated on sentences served between 31 October 2019 and 14 June 2020. That failure to give effect to the intended partial accumulation established sentencing error. Because the applicant succeeded on that ground, the Court re-sentenced him, adopting the sentencing judge's findings on objective seriousness, allowing a 25% discount for the early guilty plea, accepting special circumstances, considering rehabilitation and remorse, and taking conditional liberty into...

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted, appeal allowed, District Court sentence quashed, and the applicant re-sentenced to imprisonment with a non-parole period expiring on 10 July 2021 and release directed forthwith.
Legal Topics
['sentence Appeal' 'accumulation of Sentences' 'pre Sentence Custody' 'aggravated Break, Enter and Steal' 'special Circumstances' 'conditional Liberty']
['criminal Law' 'sentencing'] ['sentence Appeal' 'accumulation of Sentences' 'pre Sentence Custody' 'aggravated Break, Enter and Steal' 'special Circumstances' 'conditional Liberty']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge failed to give effect to an intended partial accumulation of the applicant's sentence with existing terms of imprisonment." 'Whether the sentencing judge erred in calculating the period of pre-sentence custody referable to the offence.' 'What sentence should be imposed on re-sentence.']

Ratio Decidendi

The sentencing judge expressly recognised that totality required partial, but not complete, accumulation with the applicant's existing sentences, yet by commencing the sentence on 1 February 2020 the sentence was wholly accumulated on sentences served between 31 October 2019 and 14 June 2020. That failure to give effect to the intended partial accumulation established sentencing error. Because the applicant succeeded on that ground, the Court re-sentenced him, adopting the sentencing judge's findings on objective seriousness, allowing a 25% discount for the early guilty plea, accepting special circumstances, considering rehabilitation and remorse, and taking conditional liberty into...

Court Disposition

Leave to appeal granted, appeal allowed, District Court sentence quashed, and the applicant re-sentenced to imprisonment with a non-parole period expiring on 10 July 2021 and release directed forthwith.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' 'The sentence imposed in the District Court is quashed.' 'In lieu thereof the appellant is sentenced to a term of imprisonment of 3 years commencing on 11 September 2019 and ending on 10 September 2022.' 'Specify a non-parole period of 1 year and 10 months...