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
[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
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.