AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 29 April 2009

Kaiser v R

[2009] NSWCCA 130

Homicide
CRIMINAL LAW MANSLAUGHTER APPEAL AGAINST SENTENCE OFFENDER WERE ABOUT THE SAME OFFENDER OFFENDER "MIGHT KILL THE DECEASED"

Citation: Kaiser v R [2009] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

The applicant pleaded guilty to the manslaughter of his former partner's associate, a woman with whom he had an intermittent sexual relationship and against whom he held a significant grievance. He had enlisted a co-offender to travel to the deceased's home late at night, armed with a rifle, to "sort her out." The co-offender shot and killed the deceased through her lounge room window. The applicant had carefully constructed an alibi by ensuring he was at work at the time.

At first instance, Barr J in the Supreme Court sentenced the applicant to a total term of 10 years and 11 months, with a non-parole period of 8 years and 2 months. A co-offender who physically carried out the shooting received a lesser total sentence of 9 years. A drug supply offence was taken into account on a Form 1.

The applicant sought leave to appeal, arguing the sentence was unwarranted on multiple grounds.

  • Whether the sentencing judge erred in finding that the applicant's criminality was roughly equivalent to that of the co-offender who fired the weapon
  • Whether the disparity between the applicant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance
  • Whether the sentencing judge erred in finding that the applicant foresaw that the co-offender "might kill" the deceased
  • Whether the discount allowed for the guilty plea was adequate
  • Whether the sentence was manifestly excessive or otherwise warranted

Decision

On the question of comparative criminality and sentence disparity, the Court accepted that the sentencing judge had expressed the applicant's foresight in terms that went somewhat beyond what the agreed facts strictly supported. However, the Court concluded that this did not produce an unwarranted sentence when the full circumstances were considered. The applicant had planned the enterprise carefully, created a deliberate alibi, and knew a firearm would be discharged during the assault.

On the disparity ground, the Court acknowledged the co-offender received a lesser sentence despite physically carrying out the shooting. The co-offender's alcohol consumption on the night was a relevant mitigating factor for him, and his plea was entered earlier. The Court found the applicant had not established a justifiable sense of grievance sufficient to warrant appellate intervention.

Regarding the guilty plea discount, the sentencing judge described the discount as "modest" without specifying a precise percentage. The Court confirmed, citing R v Simpson, that a failure to explicitly quantify the discount does not of itself constitute error, provided a discount is in fact applied. The Court found no error in this approach.

On manifest excess, the Court rejected the comparison with other manslaughter sentences, noting the difficulty of comparing sentences across manslaughter cases given their varied circumstances. The planning involved, the creation of an alibi, the applicant's prior threatening conduct toward the deceased (including breaches of an AVO), the fact he was on bail and subject to a bond at the time, and the additional drug supply offence all weighed heavily against the applicant. The sentence was found to be within range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's failure to specify a precise numerical percentage discount for a guilty plea does not constitute error, provided some discount is applied and its utilitarian value is acknowledged.
  • Sentence disparity between co-offenders does not automatically generate a justifiable sense of grievance warranting appellate intervention; differences in individual circumstances, including the timing of a plea and mitigating factors personal to each offender, can justify a gap.
  • In dismissing the appeal, the Court emphasised the particular aggravating features of the applicant's conduct: careful planning, deliberate alibi construction, prior threatening behaviour toward the deceased, active AVO and bail conditions at the time of the offence, and knowledge that a firearm would be discharged.
  • Where a sentencing judge's expression of an offender's mental state goes slightly beyond what agreed facts technically support, the Court may still decline to intervene if the resulting sentence is not shown to be unwarranted in all the circumstances.
  • Comparisons between manslaughter sentences across different cases carry inherent difficulty, and the Court of Criminal Appeal applied the established principle that each such sentence must be assessed on its own particular facts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- R v Simpson [2001] 53 NSWLR 704
- R v Forbes [2005] 160 A Crim R 1
- FDP v R [2008] NSWCCA 317
- GAS v The Queen [2004] 217 CLR 198
- Gerard [1991] 56 A Crim R 297
- R v Bryant [1999] NSWCCA 181
- R v Clifford [2005] NSWCCA 350
- R v Diab [2003] NSWSC 978
- R v Ellis (1986) 6 NSWLR 603
- R v Hales (unreported, NSWCCA, 2 July 1992)
- R v Norman & Oliveri [2007] NSWSC 142
- R v Oosterum [2004] NSWSC 532
- R v Tran [1999] NSWCCA 443
- R v Waterman [2002] NSWSC 1236