Supreme Court New South Wales

• Medium Neutral Citation: R v Kaewklom (No. 4) [2013] NSWSC 504
• Hearing dates: 3 May 2013
• Decision date: 03 May 2013
• Jurisdiction: Common Law - Criminal
• Before: Johnson J

Decision

1. The sentence passed on 8 February 2013 with respect to the offence of recklessly causing grievous bodily harm is set aside.

2. The Offender is convicted of the offence of recklessly causing grievous bodily harm on 10 February 2011.

3. For that offence, the Offender is sentenced to imprisonment comprising a non-parole period of two years and nine months commencing on 15 February 2011 and expiring on 14 November 2013, with a balance of term of one year commencing on 15 November 2013 and expiring on 14 November 2014.

• Catchwords: CRIMINAL LAW - sentence - application under s.43 Crimes (Sentencing Procedure) Act 1999 - committal for sentence for offence under s.33 Crimes Act 1900 - sentence proceedings transferred from District Court to Supreme Court to be linked with murder sentencing proceedings - parties proceed upon erroneous basis that committal for sentence for offence under s.35 Crimes Act 1900 - Offender sentenced for murder and s.35 offence - Crown application to reopen sentencing proceedings - common submission that sentence for s.35 offence was contrary to law - sentence reopened - fresh indictment presented - Crown accepts plea of guilty for s.35 offence - Offender sentenced according to law
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900; Criminal Procedure Act 1986
• Cases Cited: R v Kaewklom (No. 3) [2013] NSWSC 59
• Texts Cited: ---
• Category: Sentence
• Parties: Regina (Crown); Kukiat Kaewklom (Offender)
• Representation: Counsel: Ms GM O'Rourke (Crown); Ms JS Manuell SC (Offender); Solicitors: Director of Public Prosecutions (Crown); Elie Rahme & Associates (Offender)
• File Number(s): 2011/50515
• Publication restriction: ---

JUDGMENT

1 JOHNSON J: This is an application, initiated by the Crown, under s.43 Crimes (Sentencing Procedure) Act 1999 seeking to reopen sentence with respect to the Offender, Kukiat Kaewklom, for an offence under s.35(2) Crimes Act 1900 of recklessly causing grievous bodily harm.

2 On 8 February 2013, I sentenced the Offender with respect to an offence of murder and an offence under s.35(2) Crimes Act 1900: R v Kaewklom (No. 3) [2013] NSWSC 59. The circumstances in which the s.35(2) matter came to be before this Court were explained at [5]-[8] of my remarks on sentence of that day.

3 I sentenced the Offender for the s.35(2) offence to a term of imprisonment comprising a non-parole period of two years and nine months commencing on 15 February 2011 and expiring on 14 November 2013, with a balance of term of one year commencing on 15 November 2013 and expiring on 14 November 2014.

4 A sentence of imprisonment for 20 years was imposed on the murder count with a commencement date of 15 February 2013, and with a non-parole period of 13 years and six months expiring on 14 August 2026.

5 The overall effect was that a period of two years' imprisonment was solely attributable to the s.35(2) offence (being the period from 15 February 2011 to 14 February 2013).

6 On 25 March 2013, a letter was despatched by the Office of the Director of Public Prosecutions to me, drawing attention to a problem that had been recognised with respect to the sentencing process for the s.35(2) offence. Put shortly, there had been a common understanding by the parties (and myself) at the time of sentence, that the Offender had pleaded guilty to, and been committed for sentence from the Local Court, for an offence under s.35(2). In that way, the Court proceeded in accordance with s.99ff Criminal Procedure Act 1986, upon the basis that the Offender had pleaded guilty to the s.35(2) offence in the Local Court and had been committed for sentence on that count.

7 What was discovered by the Crown after the imposition of sentence was that the Offender had, in fact, pleaded guilty to an offence under s.33(1)(b) Crimes Act 1900 of causing grievous bodily harm with intent to cause grievous bodily harm. That offence is a more serious one with a higher maximum penalty than an offence under s.35(2).

8 I should note that neither senior counsel for the Offender, or her instructing solicitor, had appeared for the Offender in the Campbelltown Local Court, or in this Court until 8 November 2012. Nor did the Crown prosecutor, or her instructing solicitor, appear in the Local Court. As mentioned in R v Kaewklom (No. 3) at [5], the committal for sentence matter was transferred to this Court from the District Court to allow the Offender to be sentenced for the two offences at the same time. This was a sensible course in the circumstances of the case, but regrettably there was an inaccurate understanding concerning the committal for sentence matter.

9 There is a common submission from the Crown and senior counsel for the Offender, that what occurred on 8 February 2013 involved the imposition of a penalty that was contrary to law.

10 Section 43 permits the sentencing Court, or a Judge of the sentencing Court, to reopen the question of sentence if there has been a sentence imposed that was contrary to law. There is no need on this application to expand upon the construction and operation of s.43. I am well satisfied, as counsel on both sides of the record submit, that the course which occurred on 8 February 2013 involved the imposition of a penalty that was contrary to law. It was not open to the Court to sentence the Offender for an offence to which he had not pleaded guilty, and been committed for sentence.

11 Accordingly, at the hearing of the application today, I directed that the question of sentence on the s.35(2) offence be reopened. I made an order setting aside the sentence which I imposed which, as I have said, was contrary to law.

 

12 Section 43(2) provides that the Court may reopen the proceedings and, after giving the parties an opportunity to be heard, impose a penalty that is in accordance with the law, and if necessary, amend any relevant conviction or order.

13 The procedure which has been adopted to allow the Court to proceed to finality with respect to this matter today, has involved the presentation of an indictment containing two counts; Count 1 being a charge under s. 33(1)(b) Crimes Act 1900; Count 2 being an alternative count under s.35(2) of the Act.

14 The common position of the parties was that the appropriate and fair way to proceed was for the Offender to enter pleas to the two counts, with the expectation that he would plead not guilty to the first count and guilty to the alternative second count, with the Crown indicating an acceptance of that plea in full discharge of the indictment. That is, in fact, what occurred.

15 Thus, by a pathway that is not affected by legal error, this Court is now able to impose a penalty that is in accordance with the law. I have already set aside the legally flawed sentence which I passed on 8 February 2013. I have heard the parties on the question of what sentence ought now be imposed upon the Offender.

16 I acknowledge that the approach adopted has a benefit for the Offender, in that he is to be sentenced today for an offence which is of lesser gravity than that to which he had pleaded guilty initially in the Local Court. However, the fact is that the position which occurred at the sentencing hearing before me, leading to sentence being passed on 8 February 2013, involved a common and mistaken acceptance that that was the offence for which he should be sentenced. The Crown position on this application is, in my view, both fair and reasonable.

 

17 I also take into account the fact that, as my remarks on sentence made clear (at [83]-[87], [126], [139]-[140]), the Offender was being sentenced as a young man for two serious offences for which, in the end, a total effective non-parole period of 15 years and six months was imposed.

18 The s.35(2) offence for which the Offender was sentenced on 8 February 2013, and for which I am now asked to sentence him again, was and remains a serious offence. I am satisfied, however, in the exercise of the Court's discretion under s.43, that the approach which I am asked to take is the appropriate one in all the circumstances.

19 The common submission again is that the appropriate course is to impose the sentence which was imposed (albeit on a flawed basis) for this offence on 8 February 2013. The Crown does not submit that any different sentence ought be imposed, and senior counsel for the Offender likewise does not submit that there ought be any alteration to the sentence, or to the level of accumulation which was ordered.

20 I am satisfied that it is appropriate in the circumstances to impose the sentence of imprisonment which was imposed on 8 February 2013 for this offence. That course will mean that the sentences imposed upon the Offender on 8 February 2013 will remain the same in duration and combination, but with those sentences not being affected by legal error.

21 Accordingly, the Offender is convicted of the offence of recklessly causing grievous bodily harm to X, committed on 10 February 2011. For the crime of recklessly causing grievous bodily harm to X, I sentence the Offender to imprisonment comprising a non-parole period of two years and nine months commencing on 15 February 2011 and expiring on 14 November 2013, with a balance of term of one year commencing on 15 November 2013 and expiring on 14 November 2014.

22 I note that the sentence of imprisonment on the murder count remains as imposed on 8 February 2013.

23 Accordingly as a result of the sentence imposed today (in conjunction with the sentence for murder), the earliest date upon which the Offender will be eligible for release to parole remains 15 August 2026.

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Decision last updated: 23 May 2013