Kien v R

[2012] ACTCA 25

ACT Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Manifest excess
5. › Whether sentence proportionate to criminality
6. › Whether single instance of different penalty for different offence establishes manifest excess
7. › Crimes Act 1900 (ACT), ss 23, 27(3)(a)
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Provocation
5. › Whether victim's actions constituted provocation where offender's response grossly disproportionate
6. › Whether victim's responsive actions to offender's unwelcome presence amount to provocation
1. Criminal Law
2. › Sentencing
3. › Domestic violence offences
4. › Intentionally inflicting actual bodily harm
5. › Choking so as to render unconscious
6. › Totality principle
7. › Concurrency of sentences

Quick Take

Where a victim's actions are responsive to an offender's unwelcome presence and the offender's response is grossly disproportionate, the victim's actions do not constitute provocation capable of mitigating sentence. A single instance of a different penalty for a different offence is not a legitimate basis for establishing manifest excess.

Case Details

Citation[2012] ACTCA 25

CourtACTCA

JurisdictionAustralian Capital Territory

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Cited by1

2012Tate v RACTCA 50

Relies on5

2010R v CampbellACTCA 20
2010R v ThornACTCA 10
2005R v BellACTSC 123
2005R v BellNSWCCA 81
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