Kearsley v R

Case [2017] NSWCCA 28


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Kearsley v Regina [2017] NSWCCA 28
Hearing dates: 7 March 2017
Date of orders: 22 March 2017
Decision date: 22 March 2017
Before: Macfarlan JA at [1]
Harrison J at [21]
Schmidt J at [96]
Decision:

(1)    Grant leave to appeal.
(2)    Allow the appeal.
(3)    Set aside the sentence imposed on Mr Kearsley in the District Court on 26 August 2016.
(4)    Sentence Mr Kearsley to an aggregate term of imprisonment of 18 months commencing on 26 August 2016, with a non-parole period of 9 months.
(5)    Order that Mr Kearsley be released on parole on 26 May 2017, being the day that he will be eligible for release on parole.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – offence of administer intoxicating substance with intent to commit indecent assault – sentencing judge erred in not properly assessing objective seriousness of offence – appellant resentenced
CRIMINAL LAW – sentencing – whether mental illness relevant to appellant’s moral culpability where not causally connected to the offence – significance of general deterrence where appellant suffers psychiatric illness – Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1 – R v Engert (1995) 84 A Crim R 67
CRIMINAL LAW – sentencing – relevance of extra-curial punishment
CRIMINAL LAW – sentencing – offences contrary to ss 38 and 61L Crimes Act 1900 – offences of administer intoxicating substance with intent and indecent assault – very strong subjective case – subjective considerations must not cause inadequate weight to be given to objective circumstances – no other penalty than imprisonment appropriate – whether custodial sentence should be suspended
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Baumer v The Queen (1988) 166 CLR 51
Chayadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Delaney v R (2013) 230 A Crim R 581; R v Delaney [2013] NSWCCA 150
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dodd v The Queen (1991) 57 A Crim R 349
Ibbs v The Queen (1987) 163 CLR 447
Iskander v R [2013] NSWCCA 235
Johnson v R (2004) 205 ALR 346; [2004] HCA 15
Kenny v R [2010] NSWCCA 6
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2016] NSWCCA 218
Khoury v R [2011] NSWCCA 118
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Muldrock v The Queen (2011) 244 CLR 120;(2011) HCA 39
Pearce v R (1998) 194 CLR 610; [1998] HCA 57 Phanekham v R [2015] NSWCCA 295
Power v The Queen (1974) 131 CLR 623 at 628–629
Priovolidis v R [2016] NSWCCA 20
R v Brown [2012] NSWCCA 199
R v Campbell [2014] NSWCCA 102
R v Dodd (1991) 57 A…

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AGLC
Kearsley v R [2017] NSWCCA 28
Case
[2017] NSWCCA 28
Decision Date

CaseChat Overview and Summary

The appellant, Kearsley, appealed against his sentence for administering an intoxicating substance with intent to commit an indecent assault. The case was heard in the NSW Court of Criminal Appeal. The central issue before the court was whether the sentencing judge had erred in not properly assessing the objective seriousness of the offence, which led to an inappropriate sentence. Additionally, the court examined the relevance of the appellant's mental illness to his moral culpability and the role of general deterrence in sentencing.

The court noted that the appellant's mental illness, while not causally connected to the offence, was relevant to his moral culpability. The court considered the principles from Director of Public Prosecutions v De La Rosa and R v Engert, emphasising that subjective considerations should not cause inadequate weight to be given to objective circumstances. The court found that the sentencing judge did not adequately assess the objective seriousness of the offence, which was a very strong subjective case. Consequently, the court determined that no other penalty than imprisonment was appropriate, and a custodial sentence should not be suspended.

Given the severity of the offence, the court determined that the appellant should be resentenced. The court held that the original sentence was manifestly inadequate and that the appellant's culpability warranted a custodial sentence. The appeal was allowed, and the appellant was resentenced to a term of imprisonment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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