R v KAY

R v KAY - [2000] NSWSC 716 - NSWSC 2000 case summary — Zoe

Parties

Applicant/Plaintiff:

Respondent/Defendant:

KAY

Legislation Cited (1)

Criminal Procedure Act 1986(NSW)

Cases Cited (11)

CITATION : R v KAY [2000] NSWSC 716 FILE NUMBER(S) : SC 70084/97 HEARING DATE(S) : 1.3.99; 17.3.99; 28.4.99; 25.6.99; 3.12.99 JUDGMENT DATE : 26 July 2000

102 Of course the principle of totality must be borne in mind. "It is well established that in sentencing a person in respect of multiple offences, regard must be had to the total effect of the sentence on the offender" - Griffith v R (1989) 167 CLR 372 at 393. "When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable." - Gordon (1994) 71 A Crim R 459 at 466. It is not simply a case of determining the appropriate sentence for each offence in isolation and adding all together. Furthermore, as I have said elsewhere - R v Spiteri [1999] NSWCCA 3 - "I take the view that actual imprisonment for, say 10 years is more than twice as severe as imprisonment for 5 years. … (the longer period) is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover".

121 There is nothing in the circumstances of the individual offences to justify any of them being made concurrent. They were unconnected, except insofar as the Prisoner participated in each. However, the principle of totality requires that they be not simply accumulated. One must recognise that they are incidents in one course of criminality of the Prisoner and consider what penalty is appropriate for that. That inquiry raises a number of issues. It seems to me that one relevant question is whether his offences deserve a greater punishment than is commonly imposed for murder - see R v Sharrock [1999] NSWCCA 289. The Prisoner had 8 victims and although there was at least one instance of what I would regard as serious psychological damage, none of the victims lost their lives. On the other hand, his offences were premeditated and planned and in that respect, his criminality was worse than that of some instances of murder. It is appropriate also to recognise that his course of conduct is likely to have affected more people than his individual victims. Contemporaneous press reports of his offences are likely to have led to a number of persons at say, Artarmon, changing their pattern of life to avoid the risks his conduct created. The public are entitled to be protected, not only against the risks, but also against the fear which his type of conduct is calculated to engender. That said, I do not suggest that the Prisoner's sentence should be extended beyond that appropriate to his crimes - see Veen v R (No 2) (1987-88) 164 CLR 465 at 473.

126 Despite the remarks in the immediately preceding paragraph, there is one case in the Schedule to which I wish to refer. It is R v Presta [2000] NSWCCA 40 where the effective sentence imposed was one of 19 years including a minimum term of 14 years and 3 months - both periods less than I regard as appropriate here. Although there were only 5 victims in that case as compared with 8 here, the extent of offending was in my view worse. I wish to make it clear that in my view, insofar as there may be inconsistency in the sentences imposed in that and the instant case, it arises because the sentence in R v Presta was lenient and probably unduly so. In the Court of Criminal Appeal Greg James J described the sentence in that case as "very lenient" and while Grove J said that the sentences imposed were entirely appropriate, those remarks must be considered in light of the fact that the appeal was by the offender, contending that the sentence was manifestly excessive. 127 In order to effect the above conclusions, I decline to set a non parole period in respect of the offences the subject of the first, second and fourth counts of the indictment and the orders I make are as follows:- 1. In respect of the offence the subject of the first count of the indictment, the Prisoner is sentenced to a fixed term of imprisonment of 3 years and nine months commencing on the day of his arrest, viz 18 February 1997 and concluding on 17 November 2000. 2. In respect of each of the offences the subject of the second and fourth counts of the indictment, the Prisoner is sentenced to a fixed term of imprisonment of 4½ years commencing on 18 February 1997 and concluding on 17 August 2001.

(1998) 72 ALJR 1416

(1986) 6 NSWLR 603

(1971) 1 NSWLR 247

(1987) 163 CLR 447

(1988) 164 CLR 465

(1989) 167 CLR 372

(1998) 1 VR 664

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Judgment (20 paragraphs)

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Legislation Cited (1)

Cases Cited (11)