Kerr v The Queen

[2001] TASSC 23

[2001] TASSC 23

CITATION:              Kerr v R [2001] TASSC 23

PARTIES:  KERR, Anthony Pearce
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 87/2000
DELIVERED ON:  8 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  8 March 2001
JUDGMENT OF:  Crawford, Evans and Blow JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  In Person
           Respondent:  L A Mason
Solicitors:
           Appellant:  In Person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2001] TASSC 23
Number of Paragraphs:  12

Serial No 23/2001
File No CCA87/2000

ANTHONY PEARCE KERR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
EVANS J
BLOW J
8 March 2001

Order of the Court

Appeal dismissed

Serial No 23/2001
File No CCA87/2000

ANTHONY PEARCE KERR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
EVANS J
BLOW J
8 March 2001

1. The appellant pleaded guilty to one count of aggravated burglary and one count of attempted aggravated armed robbery.  On 13 October 2000, he was sentenced to imprisonment for 4 years and 3 months commencing on 13 September 2000.  He appealed on one ground only, that the sentence was manifestly excessive in all the circumstances. 

1. On 14 June 1999, he and two other men broke into the home of an 18 year old student.  A fourth man had earlier identified the intended victim and the layout of the premises.  Although not the instigator of what took place, the appellant urged and encouraged its commission.  The purpose of it was to obtain money and marihuana believed to be in the young man's flat.  The appellant and his two accomplices went to the flat armed with a large kitchen knife and a pocket knife or Stanley knife, it matters not which, a spanner or wrench and balaclavas.  They ensured their features were concealed using the balaclavas and rang the doorbell.

1. The victim, Mr Dunne, was alone and opened the door.  The appellant and his co-offenders pushed their way inside and demanded money.  Before he could answer, he was assaulted by the appellant and one O'Brien.  They pushed him against the desk and the kitchen knife was held to his throat.  He was pushed onto the loungeroom floor, he was stabbed in the stomach with the smaller knife, he was kicked and punched to the head and body, and he was struck to the head with the spanner.  He was threatened with death and his own metal baseball bat was wielded to reinforce the threat.  While the appellant and O'Brien were assaulting Mr Dunne, the third member of the party unsuccessfully searched the flat for drugs and money.  The flat was ransacked.  As they were leaving, they cut the telephone line. 

1. The appellant inflicted punches and cuts with the knife.  As a consequence of the violence, the victim spent two days in hospital and suffered the following injuries:

·   a small penetrating injury to the abdomen, 2.5cm deep, that was sutured;

·   a fracture to the left elbow joint, that was surgically fixated with pins and wiring;

·   abrasions to the left side of the face;

·   a scalp wound to the left region of the head, that was sutured;

·   a superficial scratch to the left lower quadrant of the abdomen.

1. The learned sentencing judge concluded from the ferocity of the violence that it was inflicted, not only in order to obtain money and drugs, but also to satisfy a desire for brutality.  His Honour correctly categorised it as very grave criminal conduct, which was aggravated by the fact that it was committed after breaching the sanctity of the victim's home, and to which the appellant was a willing party.

1. The learned judge took into account what was put to him in mitigation of sentence by the appellant's counsel.  He had an unfortunate upbringing.  At the time of the commission of the crimes, he was in the grip of drug addiction, although his Honour correctly disregarded that as mitigatory.  The appellant was born with a condition known as Klinefelter's Syndrome, from which he had continued to suffer with physical symptoms and complications.  He suffered from Bipolar Affective Disorder.  After a somewhat tortuous hearing which revolved around the question of what was the opinion of the psychiatrist, Dr Ian Sale, it was eventually determined, and conceded by the appellant's counsel, that the disorder had no causal effect so far as the commission of the crimes was concerned.

1. The co-offender, O'Brien, was also sentenced to imprisonment for 4 years and 3 months.  He was much younger than the appellant, only 18 years of age at the time of the crimes, although his criminal record was longer than that of the appellant, who was aged 35.  The appellant's record included a number of offences of dishonesty.  Four years before the commission of these crimes, he was sentenced to imprisonment for assault, although the sentence was suspended.  Less than 16 months before these crimes, he was sentenced for 126 charges of dishonesty to 9 months' imprisonment, all of which was suspended upon a condition of good behaviour and honesty for 2 years.  It is to be observed, therefore, that the positive threat of imprisonment, which was hanging over him, did not deter him from committing these crimes.

1. The learned sentencing judge saw no reason to distinguish the appellant's case from that of O'Brien for the purposes of sentence and his Honour was correct in coming to that conclusion.

1. O'Brien also appealed against his sentence.  When dismissing it, the Chief Justice, with whom the other members of the Court of Criminal Appeal agreed, said the following:

"This was clearly a very serious crime.  It was committed in concert on a defenceless victim; it involved a significant invasion of private premises; the wearing of masks to disguise the offenders tends to arouse added fear in a victim; and not inconsiderable physical injuries were inflicted.  The attack was for personal gain and was prolonged and vicious."

All of those comments apply equally to the appellant's crimes. 

1. In our opinion, the sentence of imprisonment for 4 years and 3 months was just and within the range of sentences commonly imposed for crimes of like gravity.  We are unpersuaded that the sentence was manifestly excessive. 

1. This morning, on the hearing of the appeal, the appellant submitted that a period of about 6 months, while he was an inpatient in the Royal Derwent Hospital against his will, should have been deducted from the sentence.  According to medical reports, he was a patient in the hospital for therapeutic purposes.  He was not a patient for any reason arising out of the commission of the crimes in question.  He was not a patient by reason of any court order arising out of his being charged with them.  In those circumstances, it would have been inappropriate to deduct the time spent by him in hospital from the sentence of imprisonment which was imposed on a later date.

1. For these reasons, the appeal is dismissed.