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Kerr v The Queen

Kerr v The Queen

Case [2014] NSWCCA 235 6 November 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kerr v R [2014] NSWCCA 235
Hearing dates: 2 July 2014
Decision date: 06 November 2014
Before: Hoeben CJ at CL at 1; Harrison J at 2; McCallum J at 51
Decision:
1. Grant leave to appeal
2. Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against sentence - deal with proceeds of crime - obtain financial advantage by deception - offences under s 178BA(1), s 193B(1) and s 300(2) Crimes Act 1900 - whether sentence manifestly excessive being unreasonable and plainly unjust
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Dela Cruz v R [2010] NSWCCA 333
Frahm v R [2014] NSWCCA 10
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Schembri v R [2010] NSWCCA 149; (2010) 78 ATR 159
Subramaniam v R [2013] NSWCCA 259
Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Principal judgment
Parties: Michael Raymond Kerr (Applicant)
Crown (Respondent)
Representation: Counsel:
T Gartelmann (Applicant)
T Smith (Crown)
Solicitors:
McWilliams Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/13237
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-01-22 00:00:00

Before:

Bennett DCJ

File Number(s):

2009/13237

Judgment

HOEBEN CJ at CL: I agree with Harrison J.

HARRISON J: The applicant seeks leave to appeal against sentences imposed by his Honour Bennett DCJ on 22 January 2013. The applicant was convicted following a trial that commenced on 12 June 2012 and concluded on 4 July 2012. The jury returned verdicts of guilty in respect of all 39 counts on the indictment variously comprising offences contrary to s 178BA(1), s 193B(1) and s 300(2) of the Crimes Act 1900. These offences are referred to in more detail in annexure A to these reasons.

The applicant was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years. The indicative sentence for each offence is set out in annexure B to these reasons. The structure of accumulation and concurrency adopted by his Honour that produced the aggregate sentence is depicted in annexure C to these reasons.

The applicant propounds a single ground of appeal in this Court, contending that the sentence imposed by his Honour is manifestly excessive being unreasonable and plainly unjust.

The facts of the offences

William Pittelkow was the sole shareholder and director of a packaging company, Pharmaceutical Fillers Pty Ltd. In late 2005, the applicant and his business partner began to use Pharmaceutical Fillers' premises to package a product. The applicant and Mr Pittelkow took…

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 The Queen

Details

AGLC: Kerr v The Queen [2014] NSWCCA 235
Case: [2014] NSWCCA 235
Decision Date: 06 November 2014

CaseChat Overview and Summary

The case of Kerr v The Queen involved an appellant, Kerr, who appealed against his sentence imposed by the Supreme Court of Queensland. Kerr was found guilty of obtaining financial advantage by deception, dealing with the proceeds of crime, and perverting the course of justice. The appeals were heard in the High Court of Australia. Kerr argued that the sentence imposed was manifestly excessive and unreasonable, as well as plainly unjust.

The legal issues before the court were whether the sentence imposed by the Supreme Court was manifestly excessive and, if so, whether it was unreasonable and plainly unjust. The appellant argued that the sentence was disproportionate to the crimes committed, taking into account his age, background, and personal circumstances. The respondent, the Crown, contended that the sentence was appropriate and reflected the seriousness of the offences.

The High Court considered the principles of sentencing and proportionality, including the need to ensure that the sentence is not manifestly excessive. The court examined the sentencing judge's reasons and the totality of the circumstances surrounding the case. It found that the sentence was not manifestly excessive, being neither unreasonable nor plainly unjust. The court also noted that the sentencing judge had taken into account relevant mitigating factors, such as the appellant's early guilty plea and cooperation with authorities.

The High Court dismissed the appeal, affirming the sentence imposed by the Supreme Court. The court held that the sentence was proportionate to the seriousness of the offences and the need to deter and protect the community. The appeal was dismissed, and the original sentence stood.

Orders