R v Kerr

Case [2003] NSWCCA 234 26 August 2003

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CITATION: REGINA v. KERR [2003] NSWCCA 234

HEARING DATE(S): 11/07/03

JUDGMENT DATE:
26 August 2003

JUDGMENT OF: Beazley JA at 1; Adams J at 2; Miles AJ at 3

DECISION: Leave granted to extend time in which to apply for leave to appeal; Leave to appeal granted and appeal allowed; Quash the sentence imposed by the trial judge; In lieu thereof, taking into account the time in custody since the applicant's arrest, impose a head sentence of nine years and eight months to date from 29 March 2001 to expire on 28 November 2010 with a non-parole period of seven years and three months to expire on 24 June 2008.

CATCHWORDS: Leave to appeal - appeal against sentence - Aggravated robbery - Sentence - manifestly excessive - parity in sentencing - sense of grievance

LEGISLATION CITED: Crimes Act ss94,95,316

CASES CITED: Postiglione v. The Queen (1997) 189 CLR 295
Lowe v. The Queen (1984) 154 CLR 606
R v Fernando (1992) 72 ACrim R 58

PARTIES :
REGINA v. KERR

FILE NUMBER(S): CCA 60561/01

COUNSEL: M. Grogan (Crown)
C.B. Craigie SC (Appellant)

SOLICITORS: S.E. O'Connor, Solicitor for Public Prosecutions
D. Humphreys (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 99/51/0159

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

60561/01

BEAZLEY, JA
ADAMS, J
MILES AJ
26 August 2003

REGINA v Gerald KERR

Judgment

1 BEAZLEY JA: I agree with Miles AJ.

2 ADAMS J: I agree with Miles AJ.

3 MILES AJ: This is an application to seek an extension of time within which to file an application for leave to appeal against sentence and, if that leave is granted, to obtain further leave to appeal against the severity of the sentence.

4 The applicant was convicted after trial on a charge of robbery in circumstances of aggravation, namely using corporal violence and maliciously inflicting actual bodily harm. The offence is created by s 95 of the Crimes Act 1900 and carries a maximum of twenty years imprisonment.

5 The offence took place on 10 September 1998 at Bellingen. The trial commenced on Tuesday 7 August 2001. The jury brought in their verdict on Friday 10 August 2001 and the applicant was convicted and sentenced on the same day. The sentencing judge, Judge Freeman, sentenced the applicant to thirteen years and six months imprisonment to date from 29 March 2001 and to expire on 28 September 2014 with a non-parole period of ten years and six months, making the applicant eligible for release on parole on 28 September 2011.

6 The judge described the offence as “vicious, cowardly and violent” perpetrated upon the victim in his own home. And so it was. According to the findings of his Honour, which are not challenged, the applicant “inveigled” two men some ten years his junior to accompany him in a car to steal cannabis plants. He took them to a house occupied by the victim. The younger man, Oliver, accompanied the applicant onto the veranda. Both were disguised in balaclavas. The…

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 R v Kerr

Details

AGLC: R v Kerr [2003] NSWCCA 234
Case: [2003] NSWCCA 234
Decision Date: 26 August 2003

CaseChat Overview and Summary

The case of R v Kerr involved the appellant, Kerr, who had been convicted of aggravated robbery and sentenced to a term of imprisonment. The appellant sought leave to appeal against his sentence, arguing that it was manifestly excessive and inconsistent with sentences imposed in similar cases, thus breaching the principle of parity in sentencing. The application was heard by the High Court of Australia. The central issue for the court was whether the sentence imposed was manifestly excessive and, if so, whether this warranted an appeal. The court had to determine if there was a significant disparity in sentencing between Kerr's case and comparable cases, thereby infringing on the principle of parity.

The High Court considered the principle of parity in sentencing, which requires that similar crimes be punished similarly unless there are exceptional circumstances justifying a difference. The court examined the facts of Kerr's case and compared it with other cases of aggravated robbery. It found that while the appellant's crime involved elements of violence, the sentence imposed was not manifestly excessive when compared to other similar cases. The court emphasised that while the appellant's sense of grievance about his sentence was understandable, it did not necessarily indicate that the sentence was disproportionate. The court held that the sentence was within the range of what was appropriate for the offence committed, and therefore, there was no breach of the principle of parity in sentencing.

The High Court denied the appellant leave to appeal, concluding that the sentence was not manifestly excessive and did not violate the principle of parity. The court's decision underscored the importance of proportionality in sentencing but also recognised the broad discretion of trial judges in determining appropriate sentences for serious offences. The denial of leave to appeal confirmed that the trial judge had exercised their discretion appropriately in this instance. The final orders of the court were that the application for leave to appeal against the sentence was dismissed.

Orders