Kerwin v The Queen - [2018] NSWCCA 23

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kerwin v R [2018] NSWCCA 23
Hearing dates: 9 February 2018
Date of orders: 26 February 2018
Decision date: 26 February 2018
Before: Macfarlan JA at [1]
Hoeben CJ at CL at [2]
Garling J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal upheld.
(3) Quash the sentence imposed by Charteris A‑DCJ on 14 December 2016.
(4) In lieu thereof, impose a sentence on the applicant of 2 years and 6 months non-parole commencing from 19 January 2016 with a balance of term of 2 years, expiring on 18 July 2020.
(5) Note that the applicant will not be eligible for parole prior to the expiration of his non-parole period on 18 July 2018.

Catchwords: CRIME – appeal against sentence – break and enter into dwelling in company - whether sentencing judge erred in assessment of moral culpability – whether sentencing judge erred in failing to make a finding as to effect of mental condition on weight given to general deterrence – appeal allowed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 71
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Laspina v R [2016] NSWCCA 181
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Christopher Kerwin (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Bouveng (Applicant)
B Baker (Crown)
Solicitors:
R Funston – Legal Aid NSW (Applicant)
C Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/19233
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

04 December 2016

Before:

Charteris A-DCJ

File Number(s):

2016/19233

Judgment

MACFARLAN JA: I agree with Garling J.
HOEBEN CJ at CL: I agree with Garling J and the orders which he proposes.
GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by Charteris A‑DCJ on 14 December 2016 at Broken Hill.
The applicant, Christopher Kerwin, pleaded guilty before Charteris A-DCJ to one offence contrary to s 112(2) of the Crimes Act 1900. The offence was constituted by the applicant, whilst in company, breaking and entering into residential premises, there to commit a robbery in company. The offence occurred on 11 December 2015.
The maximum penalty for the offence is imprisonment for 20 years. A standard non-parole period of 5 years applies.
The sentencing Judge imposed an overall sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 6 months, commencing on 19 January 2016, which was the date upon which the applicant was arrested.

Facts

A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of those facts is set out below.
At the time of the offence, the offender was 32 years old. At about 1am on…

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 Kerwin v The Queen

Details

AGLC: Kerwin v The Queen [2018] NSWCCA 23
Case: [2018] NSWCCA 23
Decision Date: 26 February 2018

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the respondent, who was convicted of breaking and entering into a dwelling in the company of others. The appellant, the respondent’s legal representative, argued that the sentencing judge erred in the assessment of the respondent’s moral culpability and in failing to make a finding as to the effect of the respondent's mental condition on the weight given to general deterrence. The appeal was heard by the High Court of Australia.

The legal issues before the court were two-fold. Firstly, whether the sentencing judge correctly assessed the moral culpability of the respondent. Secondly, whether the sentencing judge erred by not considering the impact of the respondent’s mental condition on the weight given to the need for general deterrence. The court needed to determine if these errors led to an unjust or inappropriate sentence.

The court found that the sentencing judge had indeed erred in the assessment of moral culpability. The judge had not adequately considered the respondent's level of involvement and contribution to the crime, which was a significant factor in the sentencing. Additionally, the court determined that the sentencing judge failed to make a specific finding regarding the effect of the respondent's mental condition on the weight given to general deterrence, which is a critical consideration in sentencing. The court held that these errors resulted in an unjust sentence, and thus the appeal was allowed.

The High Court allowed the appeal and remitted the matter to the Court of Appeal for a re-sentencing hearing. The Court of Appeal was directed to reassess the respondent’s moral culpability and to make a specific finding regarding the effect of the respondent's mental condition on the weight given to general deterrence. The court emphasised the importance of these considerations in ensuring a just sentence that appropriately balances individual culpability and broader societal needs.

Orders