AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 10 September 2009

Kidd v R

[2009] NSWCCA 229

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE TOTALITY ADVANCED AGE OF OFFENDER CONDITIONS OF DETENTION

Citation: Kidd v R [2009] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 10 September 2009
Judge(s): Macfarlan JA, Grove J, Hoeben J

Background

The applicant was convicted following three successive trials in the Sydney District Court between August 2003 and May 2004. The offences were three serious armed home and business robberies committed in mid-to-late 1997, each involving careful pre-planning, the use of balaclavas and shotguns, and in two cases the forcible entry of private residences where victims were confronted and restrained.

Karpin DCJ sentenced the applicant on 30 July 2004. The sentences were structured as a cascade: the first two indictments ran from 26 August 2003, and the third (and most serious) indictment commenced on 26 August 2009, expiring on 25 August 2019, with a six-year non-parole period. The notice of appeal was not filed until April 2009, nearly five years after sentence, prompting the Court to consider whether an extension of time should be granted.

The applicant sought leave to appeal on the grounds that the overall sentence was excessive, having regard to delay in prosecution, principles of totality, the ratio of non-parole to head sentence, his advanced age, and the conditions under which he had been held in custody.

  • Whether an extension of time to file the notice of appeal should be granted
  • Whether the sentencing judge failed to give adequate weight to the delay between the commission of the offences (1997) and the imposition of sentence (2004), including a period the applicant spent serving an interstate sentence in Queensland
  • Whether the overall sentence failed to comply with the totality principle (that the combined effect of consecutive sentences must reflect the overall criminality without being crushing)
  • Whether the ratio of non-parole period to head sentence was disproportionate
  • Whether the sentencing judge gave insufficient weight to the applicant's advanced age
  • Whether the sentencing judge gave insufficient weight to the conditions of the applicant's detention, including time spent in maximum security in Queensland

Decision

Grove J (with whom Macfarlan JA and Hoeben J agreed) granted the extension of time to file the notice of appeal, citing the significant effective sentence and the matters set out in the supporting affidavit. Leave to appeal was also granted, but the appeal was ultimately dismissed.

On delay, the Court accepted that the applicant had been arrested and sentenced in Queensland before being transferred to New South Wales, and that this interstate sequence contributed to the gap between offence and sentence. However, the sentencing judge had expressly taken this into account, and no error in her treatment of delay was established.

On totality, the Court found that the structure of the sentences, including the cascade arrangement and the proportion of non-parole periods to head terms, reflected appropriate sentencing principle. The third and most serious robbery, the Burraneer home invasion involving a severely beaten victim who was known to be suffering from cancer, was properly treated as the most grave of the three offences.

On age and custodial conditions, the Court acknowledged that a balance must be struck between traditional sentencing objectives (denunciation, deterrence and punishment) and appropriate amelioration for an offender of advanced years whose health may deteriorate during a lengthy sentence. The sentencing judge had expressly addressed both considerations. The Court found she had applied the correct approach and that no error was demonstrated on either ground.

Orders Made

  • Extension of time to file the notice of appeal granted
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge who expressly addresses delay caused by an interstate arrest and sentence before return to New South Wales will not be found to have erred merely because the gap between offence and sentence is lengthy.
  • The totality principle requires that the cumulative effect of consecutive sentences not be crushing, but compliance with that principle is assessed by reference to the overall criminality involved; a cascade structure with properly calibrated non-parole periods can satisfy it.
  • Where an offender of advanced age receives a sentence that will keep them imprisoned into old age, the sentencing court is required to weigh traditional objectives against considerations of age and health, but this does not mandate a reduction that would fail to reflect the gravity of the underlying offences.
  • No error was established in the sentencing judge's treatment of custodial conditions, including time in maximum security, where the judge had expressly acknowledged those conditions as a relevant factor.
  • An extension of time to file a notice of appeal out of time may be granted where the effective sentence to be served is significant and explanatory material is placed before the Court, even where the delay in filing runs to nearly five years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 97(3), 117, 154A(1)(b), 344A

Cases
- Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Baker [2000] NSWCCA 85
- R v Holder (1983) 3 NSWLR 245
- R v Holyoak (1995) 82 A Crim R 502
- R v Todd (1982) 2 NSWLR 513