Kerr v R

Case [2008] NSWCCA 201 29 August 2008

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New South Wales
Court of Criminal Appeal

CITATION: Kerr v R [2008] NSWCCA 201

HEARING DATE(S): 22 July 2008

JUDGMENT DATE:
29 August 2008

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Price J at 3

DECISION: (i) Leave to appeal be granted. (ii) Appeal allowed. (iii) Quash the sentence in the District Court only to the extent of the commencement dates of the sentence. Sentenced to imprisonment with a non-parole period of 8 years to commence on 9 June 2006 and to expire on 8 June 2014 with a balance of term of 3 years expiring on 8 June 2017. The earliest date the applicant is eligible for release to parole is 8 June 2014.

CATCHWORDS: Criminal Law - sentencing - aggravated kidnapping - inadvertent failure to properly backdate sentence - not a crushing sentence - totality principle not applicable not serving existing sentence - limited finding of special circumstances - no error - circumstances of unlawful detention aggravated by actual use of violence and real threat of violence - presence of a weapon - offences on Form 1 - sentence within the upper end of an appropriate range - not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 s 86(2)(b), s 86(1), s 86(2), s 86(3),
s 154A(1)(a)
Crimes (Sentencing Procedure) Act 1999 s 24(a),
s 44, s 44(2),

CATEGORY: Principal judgment

CASES CITED: Huntington v Regina [2007] NSWCCA 196
Mulato v Regina [2006] NSWCCA 282
R v Fidow [2004] NSWCA 172
R v Johnson [2004] NSWCCA 140
R v M.A.K, R v M.S.K [2006] NSWCCA 381
R v MMK [2006] NSWCCA 272
R v Newell [2004] NSWCCA 183
Regina v Cramp [2004] NSWCCA 264

PARTIES: Peter John Kerr
Regina

FILE NUMBER(S): CCA 2007/3040

COUNSEL: H. Cox (Applicant)
N. Adams (Respondent)

SOLICITORS: S. O'Connor Legal Aid Commission
S.Kavanagh Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 14 June 2007

2007/3040

SPIGELMAN CJ
SIMPSON J
PRICE J
29 August 2008

Peter John Kerr v R

Judgment

1 SPIGELMAN CJ: I agree with Price J.

2 SIMPSON J: I agree with Price J.

3 PRICE J: The applicant Peter John Kerr seeks leave to appeal against the severity of the sentence imposed upon him in the District Court of New South Wales at Sydney on 14 June 2007.

4 On 27 November 2006 the applicant pleaded guilty to a charge that he on or about 29 July 2005 and 30 July 2005, at Orchard Hills, St Marys, Prospect and other places in the State of New South Wales did take [CD] without her consent and with the intention of obtaining an advantage, namely to intimidate the said [CD] to fear harm in circumstances of aggravation, namely, that at the time of the said taking, actual bodily harm was occasioned to the said [CD].

5 The offence being one of aggravated kidnapping contrary to s 86(2)(b) of the Crimes Act 1900 is punishable by 20…

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.

Continue reading Kerr v R

Details

AGLC: Kerr v R [2008] NSWCCA 201
Case: [2008] NSWCCA 201
Decision Date: 29 August 2008

CaseChat Overview and Summary

The case of Kerr v R involved the respondent, who was convicted of aggravated kidnapping, and the applicant who sought to appeal the sentence imposed by the trial judge. The applicant was sentenced to a term of imprisonment for the kidnapping offence, and the appeal was lodged on the basis that the sentence was manifestly excessive and that the sentence was not properly backdated. The appeal was heard in the High Court of Australia.

The central legal issues before the court were whether the sentence imposed was manifestly excessive, whether the sentence should have been backdated to the date of arrest, and whether the totality principle should apply given the applicant was not serving an existing sentence. Additionally, the court needed to determine if the trial judge erred in finding limited special circumstances and if the totality principle was applicable in the given circumstances.

The court found that the sentence was within the upper end of an appropriate range and was not manifestly excessive. The court emphasised that the totality principle does not apply when the offender is not serving an existing sentence. The court also confirmed that there was no error in the trial judge’s finding of limited special circumstances. The use of violence and the threat of violence, coupled with the presence of a weapon, were considered significant aggravating factors in the sentencing. The court concluded that the sentence was appropriate given the circumstances of the unlawful detention. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge. The court held that the sentence was not manifestly excessive and that there were no errors in the trial judge’s findings or the application of the sentencing principles.

Orders