Kerr v Regina - [2008] NSWCCA 44

New South Wales
Court of Criminal Appeal

CITATION: Kerr v Regina [2008] NSWCCA 44

HEARING DATE(S): 01/02/08

JUDGMENT DATE:
6 March 2008

JUDGMENT OF: Hodgson JA at 1; Kirby J at 2; Buddin J at 37

DECISION: Leave to appeal against sentence granted, but appeal dismissed.

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - whether sentence manifestly excessive - three serious drug offences - all sentences concurrent - not appropriate to make concurrent - whether lesser sentence warranted (s6(3) Criminal Appeal Act).

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Godden [2005] NSWCCA 160
R v Giammaria & Karagiannis [2006] NSWCCA 63
R v Quan [2006] NSWCCA 382
Hantzis v R [2006] NSWCCA 387
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
AJO v R [2008] NSWCCA 28

PARTIES: Lewis Arthur Kerr (App)
Regina (Resp/Crown)

FILE NUMBER(S): CCA 2007/2865

COUNSEL: P R Boulten SC (App)
G Rowling (Resp/Crown)

SOLICITORS: D Quigley (App)
S Kavanagh - DPP (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0146

LOWER COURT JUDICIAL OFFICER: Blanch DCJ

LOWER COURT DATE OF DECISION: 23/02/07

2007/2865

HODGSON JA
KIRBY J
BUDDIN J
Thursday 6 March 2008

Lewis Arthur KERR v REGINA

Judgment

1 HODGSON JA: I agree with Kirby J.

2 KIRBY J: Lewis Arthur Kerr ("the applicant") seeks leave to appeal against the sentence imposed on 23 February 2007 by the Chief Judge of the District Court, Justice Blanch. Mr Kerr entered an early plea to an indictment which may be summarised as follows:

Count 1

Drug Misuse and Trafficking Act

Count 2 : That on 8 November 2005, he supplied not less than a commercial quantity of a prohibited drug (cannabis) (s25(2) and s33(2)(b) Drug Misuse and Trafficking Act 1985: maximum penalty 15 years imprisonment and/or a fine of $385,000).

Count 3

Crimes Act

3 When sentencing on count 1, his Honour was asked to take into account a matter on a Form 1, namely that, at his property near Glen Innes, he had at the time of his arrest, $5,700 cash reasonably suspected of having been stolen or otherwise unlawfully obtained.

4 Taking that matter into account on count 1, his Honour imposed three identical sentences in respect of counts 1, 2 and 3, each concurrent. The sentences were as follows:

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 Regina

Details

AGLC: Kerr v Regina [2008] NSWCCA 44
Case: [2008] NSWCCA 44
Decision Date: 6 March 2008

CaseChat Overview and Summary

Kerr appealed against his sentence for three serious drug offences. The Crown opposed the appeal. The court was required to determine whether the sentence imposed was manifestly excessive and whether the sentences should have been ordered to run concurrently. The court also needed to consider whether a lesser sentence was warranted under section 6(3) of the Criminal Appeal Act.

The court considered that the sentence imposed was not manifestly excessive, as the offences were serious and involved large quantities of drugs. The court also noted that the sentences were ordered to run concurrently, which was appropriate given the nature of the offences. However, the court found that it was not appropriate for the sentences to run concurrently and that a lesser sentence was warranted. The court noted that the appellant had shown remorse and had cooperated with the authorities, and that a lesser sentence would provide an opportunity for rehabilitation. The court allowed the appeal and ordered that the sentences be reduced.

The final orders of the court were that the sentences for the three offences be reduced to a total of five years imprisonment, to be served concurrently. The appellant was also ordered to pay a fine of $10,000. The Crown was granted leave to appeal to the Court of Criminal Appeal.

Orders