Kershaw v The Queen - [2009] NSWCCA 19

New South Wales
Court of Criminal Appeal

CITATION: Kershaw v R [2009] NSWCCA 19

HEARING DATE(S): 9 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 20; Kirby J at 21

EX TEMPORE JUDGMENT DATE: 9 February 2009

DECISION: Appeal against sentence allowed.
Appellant resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Judge misinformed as to prescribed standard non-parole period - Misinformation specified a longer than correct period - Express reference to mistakenly inflated period - Material error shown - Sentence reduced

CATEGORY: Principal judgment

PARTIES: Errol Alfred KERSHAW - Appellant
REGINA - Respondent

FILE NUMBER(S): CCA 2007/11442

COUNSEL: W Hunt - Appellant
N Noman - Respondent/Crown

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0326

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 5 December 2007

CCA 2007/11442

GROVE J
BLANCH J
KIRBY J
9 February 2009

Errol Alfred KERSHAW v REGINA

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hulme DCJ at Port Macquarie District Court. The applicant had pleaded guilty to a single count of aggravated breaking and entering and committing a serious indictable offence. The offence was stealing and the circumstance of aggravation was his knowledge that there was a person inside the house at the time. His Honour sentenced the applicant to imprisonment consisting of a non-parole period of two years and nine months commencing on 31 August 2007 and expiring on 30 May 2010 with a balance term of one year.

2 The facts were that at about 8.30pm on Monday 18 June 2007 Mr Graham Thomas aged fifty seven years was at his home in Kempsey. Mr Thomas is wheelchair bound as a result of amputation of one of his legs and he was at the time operating a computer. He heard a knock on the door and opened it to find an aboriginal male who spoke to him somewhat incoherently but Mr Thomas understood him to say “cigarettes, beer”. Mr Thomas told him that he neither drank nor smoked and the caller left. The caller was the applicant.

3 A little while later the complainant heard some noises in the kitchen but he initially saw nothing untoward and eventually retired to bed. Later during the night he noticed that some beer was missing from the refrigerator and his back door was open. He locked the door. On the following day he noticed that a flyscreen had been cut and a window which was normally closed and locked had been opened. Further investigation showed that other items were missing. The total value of missing items was about $200.

4 In the meantime at about 9 pm on the previous night, that is to say about half an hour after the applicant called at the house he was seen by police, who were patrolling the area, to be walking along the railway…

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 Kershaw v The Queen

Details

AGLC: Kershaw v The Queen [2009] NSWCCA 19
Case: [2009] NSWCCA 19
Decision Date: 9 February 2009

CaseChat Overview and Summary

In the case of Kershaw v The Queen, the appellant, Mr Kershaw, challenged his sentence on the grounds that the judge who sentenced him had been misinformed about the prescribed standard non-parole period applicable to his offence. The Court of Appeal was tasked with determining whether this misinformation constituted a material error that warranted a reduction in his sentence. The court examined the specifics of the case, including the judge's reliance on an inflated period and whether this error was material enough to affect the fairness of the sentencing process.

The central legal issue before the Court of Appeal was whether the misinformation about the standard non-parole period, which resulted in the judge specifying a longer period than required by law, constituted a material error. The court needed to assess whether this error was significant enough to impact the overall fairness and correctness of the sentence. The appellant argued that the misinformation led to an unjust and excessive sentence, while the Crown contended that any error was not material and did not warrant a reduction in the sentence.

The Court of Appeal found that the misinformation about the standard non-parole period did indeed constitute a material error. The court noted that the judge had explicitly referred to the inflated period in his sentencing remarks, indicating that this information directly influenced the final sentence. Given that the error resulted in a longer than necessary non-parole period, the court concluded that it was material. Consequently, the court deemed it appropriate to reduce the sentence to reflect the correct standard non-parole period. This decision underscores the importance of accurate legal information in sentencing to ensure justice is served fairly and correctly.

The Court of Appeal ordered that the appellant's sentence be reduced to account for the material error in the standard non-parole period. This outcome highlights the court's commitment to ensuring that sentencing is conducted with precision and adherence to legal standards. The reduction in sentence reflects the court's recognition of the significance of the error and its impact on the fairness of the original sentencing process.

Orders