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Court of Criminal Appeal 25 October 2007

KALIYANDA v R

[2007] NSWCCA 300

HomicideFraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE MURDER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Kaliyanda v R [2007] NSWCCA 300
Court: New South Wales Court of Criminal Appeal
Date: 25 October 2007
Judges: McClellan CJ at CL, Hulme J, Harrison J

Background

The appellant was convicted by jury of the murder of a nurse, who was killed at her unit in Liverpool on or about 23 August 1997. The Crown's case was entirely circumstantial. It alleged the appellant gained entry to the deceased's unit, killed her by smothering or strangulation, wrapped her body in plastic bags, and then systematically withdrew approximately $13,000 from her bank accounts over the following ten days using her stolen debit and credit cards.

CCTV footage from ATM machines, covert surveillance photographs, and records of the appellant's attendance at licensed clubs formed the core of the identification evidence. The Crown also alleged the appellant had pawned a camera previously purchased by the deceased. The body was not discovered until 9 September 1997, some weeks after the death.

The matter proceeded to trial only in 2007, a decade after the offence. Fraud charges had been laid earlier but not pursued, and a coronial inquest was held in December 2003 before an ex officio murder indictment was presented in August 2004. The trial judge, Grove J in the Supreme Court, sentenced the appellant to 20 years imprisonment with a non-parole period of 14 years, commencing from 5 March 2007.

  • Whether the trial judge erred in his directions to the jury on circumstantial evidence
  • Whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of murder
  • Whether insufficient weight was given to the appellant's diagnosed depression in sentencing
  • Whether insufficient weight was given to the lengthy delay between the offence and the trial
  • Whether the sentence of 20 years was manifestly excessive

Decision

Conviction appeal: jury directions and sufficiency of evidence

The Court of Criminal Appeal rejected the appellant's challenge to the trial judge's directions on circumstantial evidence. The Court also examined the photographic and other evidence and concluded that it was open to the jury, properly directed, to be satisfied beyond reasonable doubt of the appellant's guilt. The Court found no basis to disturb the conviction.

Sentence appeal: depression and delay

Grove J had expressly acknowledged in his sentencing remarks the lengthy and unusual period of uncertainty the appellant had endured, noting that the delay was not of the appellant's making and that it warranted consideration. The Court of Criminal Appeal accepted this recognition as appropriate. However, because the appellant had pleaded not guilty throughout, the Court noted there was no basis to treat the delay as evidence of rehabilitation, following the approach in R v Abookahled.

Manifestly excessive ground

The sentencing judge had regard to statistical material covering similar offences from 1994 to 2001. The median head sentence was 18 years with a non-parole period of 13.25 years, with a range extending from 10 years to life. Grove J found that the offence "manifested a callous indifference" to what the appellant had done, a finding the Court of Criminal Appeal considered entirely justified. A non-parole period of 14 years with a total term of 20 years was held to fall well within the appropriate range and was not manifestly excessive.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a wholly circumstantial Crown case can support a murder conviction where the jury is properly directed and the evidence, viewed as a whole, supports guilt beyond reasonable doubt.
  • No error was established in the trial judge's jury directions on circumstantial evidence, and the Court found it was open on the evidence for the jury to reach the verdict it did.
  • A sentencing court's express acknowledgment of lengthy pre-trial delay not caused by the offender is an appropriate mitigating consideration, though its weight depends on the particular circumstances, including whether rehabilitation can be inferred.
  • Where an offender pleads not guilty throughout proceedings, delay alone does not establish a basis for treating rehabilitation as a mitigating factor (following R v Abookahled).
  • A finding that an offence manifested callous indifference can properly support a sentence at the higher end of the available statistical range, provided that range itself is taken only as a guide rather than a rigid constraint.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19(1)
- Criminal Appeal Act 1912 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Abookahled, NSWCCA, 9 May 1991, unreported
- R v Habib [2005] NSWCCA 223
- R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211
- Shepherd v The Queen (1990) 170 CLR 573
- The Queen v Hillier [2007] HCA 13

Note: Special leave to appeal to the High Court was refused on 1 August 2008.