R v Kerwin

Case [2005] QCA 259


SUPREME COURT OF QUEENSLAND

CITATION:

R v Kerwin [2005] QCA 259

PARTIES:

R
v
KERWIN, Brian Norman
(applicant)

FILE NO/S:

CA No 421 of 2004
SC No 764 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2005

JUDGES:

McPherson, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - GENERALLY - where applicant pleaded guilty to one count of burglary in the night with violence and was convicted after trial on one count of attempted murder - where applicant had attempted to murder his estranged wife - where applicant had broken into his wife's house and attempted to strangle her in front of their eight year old daughter - where police had to intervene to prevent the applicant from harming his wife - where applicant was sentenced to 12 years imprisonment - whether sentence imposed was manifestly excessive

R v Cole [2004] QCA 109; CA No 434 of 2002, 16 April 2004, cited

R v Forster [2002] QCA 495; CA No 10 of 2002, 14 November 2002, considered

R v Lester [2004] QCA 34, CA No 325 of 2003, 20 February 2004, distinguished

R v Reeves [2001] QCA 91; CA No 276 of 2000, 13 March 2001, applied

R v Rochester; ex parte A-G (Qld) [2003] QCA 326; CA No 362 and CA No 399 of 2002, 1 August 2003, cited

COUNSEL:

G J Seaholme for applicant
S G Bain for respondent

SOLICITORS:

R J Cutler for applicant
Director of Public Prosecutions (Queensland) for respondent

KEANE JA:  On 11 November 2004, the applicant was convicted upon his plea of guilty of burglary by breaking in the night with violence.  On 15 November 2004, he was convicted after a trial of the offence of attempted murder on the same occasion as the offence the burglary was committed.  The applicant had attempted to kill his estranged wife.

The applicant was sentenced on 15 November 2004 to six years imprisonment in respect of the offence of burglary and 12 years imprisonment in respect of the offence of attempted murder.  These sentences are to be served concurrently with each other but cumulatively upon an activated suspended sentence of 135 days imposed when he was convicted on 4 April 2002 of assault occasioning bodily harm. On that occasion he was sentenced to six months imprisonment suspended after 28 days and with an operational period of two years.  The commission of the offences of burglary and attempted murder breached that suspended sentence.  The learned sentencing judge declared that the…

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Details
AGLC
R v Kerwin [2005] QCA 259
Case
[2005] QCA 259
Decision Date

CaseChat Overview and Summary

The applicant in this case pleaded guilty to one count of burglary in the night with violence and was convicted after trial on one count of attempted murder. The applicant had broken into his estranged wife's house and attempted to strangle her in front of their eight-year-old daughter, with police intervention required to prevent the applicant from harming his wife. The applicant was sentenced to 12 years imprisonment, and he now seeks leave to appeal against the sentence, arguing that it was manifestly excessive. The court must determine whether the sentence imposed was manifestly excessive and whether leave to appeal should be granted.
The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered relevant authorities, including R v Reeves, R v Rochester; ex parte A-G (Qld), R v Forster, and R v Lester. The court found that the sentence was not manifestly excessive, and therefore, the applicant's application for leave to appeal was dismissed. The court found that the sentence was within the range of sentences that could be imposed for the offence, and that the sentencing judge had appropriately considered the relevant aggravating and mitigating factors. The court also found that the sentence reflected the seriousness of the offence and the need to deter the applicant and others from committing similar offences.
In reaching its decision, the court considered the nature and circumstances of the offence, the applicant's criminal history, and the need to deter the applicant and others from committing similar offences. The court found that the offence was particularly heinous, involving a violent attack on the applicant's estranged wife in front of their young daughter. The court also found that the applicant had a history of violent behaviour and had shown no remorse for his actions. The court further found that the sentence imposed was appropriate to reflect the seriousness of the offence and to deter the applicant and others from committing similar offences.
The court dismissed the applicant's application for leave to appeal against sentence. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately considered the relevant aggravating and mitigating factors. The court further found that the sentence reflected the seriousness of the offence and the need to deter the applicant and others from committing similar offences.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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