AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 7 August 2024

KS v R

[2024] NSWCCA 147

Assault & violenceHomicide

Citation: KS v R [2024] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 7 August 2024
Judges: Adamson JA; Stern JA; Wright J

Background

The applicant, a juvenile offender identified by the pseudonym KS, pleaded guilty in the Children's Court to murder and causing grievous bodily harm with intent. The offending occurred in September 2017 when the applicant, then 16 years old, armed himself with a knife and attacked two people in a lane behind his home after overhearing them yell abuse about a friend. He stabbed the deceased once in the chest, killing him, and stabbed the second victim in the shoulder and hip.

Sentence proceedings took place in the Supreme Court in June 2023. The sentencing judge imposed an aggregate term of 16 years' imprisonment with a non-parole period of 11 years. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge indicated the sentences that would have been imposed separately: 14 years and 3 months for murder, and 7 years and 6 months for the grievous bodily harm offence (each after a 25% discount for early guilty pleas).

The applicant sought leave to appeal, contending that the indicative sentence for the grievous bodily harm offence was manifestly excessive. Notably, his counsel expressly declined to submit that the aggregate sentence itself was manifestly excessive. The appeal raised an important question of principle about the relationship between aggregate sentences and their constituent indicative sentences.

  • Whether manifest excess in an indicative sentence, in the absence of any allegation that the aggregate sentence is itself manifestly excessive, is sufficient to impugn the aggregate sentence and require resentencing.
  • Whether the indicative sentence of 7 years and 6 months for the grievous bodily harm offence was in fact manifestly excessive.

Decision

On the first and central question of principle, the Court held that characterising an indicative sentence as "manifestly excessive" involves a misconception. Manifest excess is a species of error going to the result of sentencing, that is, where the outcome is unreasonable or plainly unjust. An indicative sentence is not itself the result: the aggregate sentence is. Accordingly, the Court held that an excessive indicative sentence does not, of itself, impugn an aggregate sentence that is not also alleged to be manifestly excessive.

The Court drew a distinction between manifest excess and patent (identifiable) error. Where a patent error infects an indicative sentence, that is an error of process, and the aggregate sentence can be set aside without any need to show the aggregate is itself manifestly excessive. But no patent error was alleged here. Because the applicant challenged only the indicative sentence, and expressly disavowed any challenge to the aggregate, the Court found he had not established a proper basis to disturb the sentence. The Court applied PN v R [2024] NSWCCA 86 and the principles in Markarian and House v The King, and distinguished AJ v R [2023] NSWCCA 158 and Young v R [2021] NSWCCA 163.

On the second issue, the Court found it unnecessary to decide whether the indicative sentence was manifestly excessive, given its conclusion on the first issue. Nevertheless, the Court went on to consider the matter and concluded the indicative sentence was not manifestly excessive. The sentencing considerations pointed in different directions: the objective seriousness of the offence fell below the mid-range but not at the lower end; the applicant's deliberation in arming himself and the number of stab wounds were aggravating features; the victim suffered ongoing psychological harm; and general deterrence and denunciation remained relevant notwithstanding the applicant's youth. The indicative sentence of 7 years and 6 months was within the range open to the sentencing judge.

Leave to appeal was granted because of the matters of principle raised, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An indicative sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not the "result" of sentencing for the purposes of manifest excess. The aggregate sentence is the result, and it is the aggregate that must be shown to be unreasonable or plainly unjust.
  • Where an offender does not allege that the aggregate sentence is manifestly excessive, and does not identify a patent (process-based) error, challenging an indicative sentence alone is insufficient to have the aggregate sentence set aside and the sentencing discretion re-exercised.
  • A critical distinction exists between patent error (an identifiable error of process affecting an indicative sentence, which can require the aggregate to be set aside) and manifest excess (an error of result, which requires the aggregate itself to be impugned).
  • In dismissing the appeal, the Court of Criminal Appeal distinguished AJ v R [2023] NSWCCA 158, clarifying that the reasoning in that decision does not support a general proposition that manifest excess in an indicative sentence automatically vitiates the aggregate.
  • Youth remains a significant sentencing consideration even for serious violent offending, but general deterrence and denunciation are not displaced entirely where a juvenile offender arms himself with a knife and carries out a deliberate attack in a public place.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A
- Crimes Act 1900 (NSW), ss 18, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A, 54D
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- AJ v R [2023] NSWCCA 158
- Aryal v R [2021] NSWCCA 2
- Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Noonan v R [2021] NSWCCA 35
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- PN v R [2024] NSWCCA 86
- Ritchie v R [2023] NSWCCA 153
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Young (a pseudonym) v R [2021] NSWCCA 163