PARTIES: ALLEN, Corey Phillip v KERR, Alan Phillip
TITLE OF COURT: SUPREME COURT OF TASMANIA JURISDICTION: APPELLATE FILE NO/S: LCA 10/2009 DELIVERED ON: 25 February 2009 DELIVERED AT: Hobart HEARING DATE: 16 February 2009 JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – Particular offences – Offences against the person – Assault of female partner by punching and biting – Offence committed in presence of young children – Whether two months' imprisonment manifestly excessive.
Aust Dig Criminal Law [905]
Criminal Law – Judgment and punishment – Sentence – Miscellaneous matters – Other matters – Generally – Procedure – Procedural fairness – Obligation of court to raise important considerations – Possibility of actual term of imprisonment – Whether obligation arose.
Counsel: Applicant: K Cuthbertson Respondent: S Nicholson Solicitors: Applicant: Legal Aid Commission Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 10 Number of paragraphs: 29
Serial No 10/2009 File No LCA 10/2009
COREY PHILLIP ALLEN v ALAN PHILLIP KERR
REASONS FOR JUDGMENT PORTER J
25 February 2009
This motion to review concerns a sentence of two months' imprisonment imposed on the applicant by a magistrate on 7 January 2009. The applicant had pleaded guilty to a charge of common assault under the Police Offences Act1935, s35.
The sole ground contained in the notice to review is that the sentence imposed was manifestly excessive having regard to all the circumstances of the case. The applicant was bailed by this Court pending the determination of the motion.
The proceedings
The applicant pleaded guilty on the day he was arrested for the offence, the incident having occurred two days previously. The facts presented to the magistrate were as follows:
"[T]he victim is [a female] and she'd been in a relationship with … the defendant, for approximately three years. They have one child together who is a boy born in 2007 and the victim has another child from a previous relationship born in 2000. Both of these children were present during the incident. On Monday, 5 January 2009, the victim picked up the offender from his mother's house and took him home. The victim immediately became aware that the offender was intoxicated. At home the offender pulled a lawnmower from the back of the car and threw it into the driveway swerving [sic] swearing [at the victim] who was trying to unlock the front door of the house. The offender took the keys from her and told her to go inside. The victim became scared and stood on the front lawn. At this time the offender gave…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Allen v Kerr [2009] TASSC 10
Case
[2009] TASSC 10
Decision Date
CaseChat Overview and Summary
In the matter of Allen v Kerr, the appeal against sentence was brought before the court by the convicted individual, who sought a reduction of their imposed sentence. The respondent, Kerr, had been found guilty of assaulting their female partner by punching and biting her in the presence of young children. The appellant argued that the two-month imprisonment sentence was manifestly excessive and sought a lighter penalty. The primary legal issue for the court to determine was whether the sentence was excessive, considering the nature and circumstances of the offence.
The court considered the severity of the assault, the impact on the victims, and the presence of the children during the incident. The court also took into account the appellant's previous criminal history and the need for deterrence and denunciation. In delivering the judgment, the court found that the sentence was not manifestly excessive, given the circumstances and the need to protect the victims and the community. The court rejected the appeal, maintaining the original two-month imprisonment sentence.
The court reasoned that the appellant's actions were of a serious nature, causing physical harm to their partner and creating a distressing environment for the children present. The court further emphasised the importance of protecting the victims and ensuring that the sentence reflects the gravity of the offence. The court concluded that the sentence imposed was appropriate and did not warrant a reduction.