Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537

Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537

Because the sentencing judge treated the offence as in the mid range of objective seriousness and saw no reason to depart from the standard non-parole period guideline, the judge engaged in a two-stage sentencing process and failed to synthesise the objective and subjective factors before arriving at sentence. That Muldrock error created a doubt or question as to a mitigating circumstance warranting referral of the matter to the Court of Criminal Appeal.

Jurisdiction
Australia
Judgment Date
19 November 2013
Procedural Posture
Application for Inquiry Into Sentence Pursuant to S 78(1) of the Crimes (appeal and Review) Act 2001 / On the Papers Application in the Supreme Court of New South Wales After Dismissal of Conviction and Sentence Appeal
Outcome
Application granted. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.
Legal Topics
['standard Non Parole Period' 'muldrock Error' 'mitigating Circumstance' 'referral to Court of Criminal Appeal' 'breaking, Entering and Stealing in Company']
['criminal Law' 'sentencing' 'criminal Appeals and Review'] ['standard Non Parole Period' 'muldrock Error' 'mitigating Circumstance' 'referral to Court of Criminal Appeal' 'breaking, Entering and Stealing in Company']

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Procedural Posture

Application for Inquiry Into Sentence Pursuant to S 78(1) of the Crimes (appeal and Review) Act 2001 / On the Papers Application in the Supreme Court of New South Wales After Dismissal of Conviction and Sentence Appeal

Legal Issues

  1. 1 ["Whether there was a doubt or question as to a mitigating circumstance in the applicant's sentence because the original sentencing exercise was infected by Muldrock error." 'Whether the matter should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.']

Ratio Decidendi

Because the sentencing judge treated the offence as in the mid range of objective seriousness and saw no reason to depart from the standard non-parole period guideline, the judge engaged in a two-stage sentencing process and failed to synthesise the objective and subjective factors before arriving at sentence. That Muldrock error created a doubt or question as to a mitigating circumstance warranting referral of the matter to the Court of Criminal Appeal.

Court Disposition

Application granted. The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.

Orders

  • ['The application is granted.' 'The matter is referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912.']