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R v Kerwin

R v Kerwin

Case [2005] QCA 259 26 July 2005

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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…

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 Kerwin

Details

AGLC: R v Kerwin [2005] QCA 259
Case: [2005] QCA 259
Decision Date: 26 July 2005

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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Citations

R v Kerwin [2005] QCA 259

Most Recent Citation

R v Sauvao [2006] QCA 331

Cases Citing This Decision

R v MDU [2024] QCA 113
Citation 1 (Para 26)

…The applicant relies on two comparative sentences, R v LAN [88] and R v Kerwin .[89] [88][2019] QCA 76. [89][2005] QCA 259.…
R v DBY [2022] QCA 20
Citation 2 (Para 15)

…al (Qld) [2019] QCA 116 para [17] referring to R v Reeves [2001] QCA 91; R v Rochester; Ex parte Attorney-General (Qld) [2003] QCA 326 and R v Kerwin [2005] QCA 259.…
R v Sprott; Ex parte [2019] QCA 116
Citation 3 (Para 17)

…personal deterrence, denunciation or rehabilitation as factors in sentencing. [22] R v Reeves [2001] QCA 91; R v Rochester [2003] QCA 326; R v Kerwin [2005] QCA 259. [23][2018] QCA 212. [24]with whom Fraser and Gotterson JJA agreed. [25]at [27]-[28].…
R v Lan [2019] QCA 76
Citation 4 (Para 27)

…, including R v Sauvao ,[5] R v Ali ,[6] R v Seijbel-Chocmingkwan [7] and R v Kerwin .[8] [5][2006] QCA 331. [6][2018] QCA 212. [7][2014] QCA 119. [8][2005] QCA 259.…
R v Williams [2015] QCA 276
Citation 5 (Para 17)

…Batchelor , Kay , Schaefer and Witchard were examples of cases involving longer sentences: respectively 13 years, 14 years, 15 years and 15 years. [6][2005] QCA 259. [7][2003] QCA 326. [8][2012] QCA 327. [9][2001] QCA 327. [10][2009] QCA 150. [11][2014] QCA 119. [12][2005] 1 Qd R 428.…
R v Seijbel-Chocmingkwan [2014] QCA 119
Citation 6 (Para 1)

…A-G (Qld) ;[33] and R v Mallie; ex parte A-G (Qld) .[34] Before this Court the applicant added R v Mahoney . [28]AB 14, 18 and 38-39. [29] R v Kerwin [2005] QCA 259. [30] R v Sauvao [2006] QCA 331. [31] R v Evans [2004] QCA 458. [32] R v Lester [2004] QCA 34. [33] R v Rochester; ex parte A-G (Qld) [2003] QCA 326.…
R v Batchelor [2009] QCA 150
Citation 7

…dered R v Cole [2004] QCA 109, cited R v Forster [2002] QCA 495, considered R v Jurcik [2001] QCA 390, cited R v Kerwin [2005] QCA 259, cited R v Lester [2004] QCA 34, cited R v Mallie; ex parte A-G (Qld) [2009] QCA 109, cited R v Reeves [2001] QCA 91, cited R v Rochester; ex parte (Qld) [2003] QCA 326, considere…
R v Mallie; ex parte A-G (Qld) [2009] QCA 109
Citation 8

…R 51, cited R v Farquhar [1994] QCA 589, cited R v Forster [2002] QCA 495, considered R v Harms [2002] QCA 99, questioned R v Kerwin [2005] QCA 259, considered R v McGuren [1996] QCA 511, cited R v Reeves [2001] QCA 91, considered R v Ryder [1995] QCA 546, considered R v Sauvao [2006] QCA 331, considered R v Sch…
R v. Hester [2008] QCA 277
Citation 9 (Para 1)

…ircumstances of the case. That observation was made after the sentencing judge expressed the view, correctly, that a comparative sentence, R v Kerwin [2005] QCA 259, was less serious than the present matter because there was no evidence that the offender was a danger to the public or a risk to the community. It w…
R v Sauvao [2006] QCA 331
Citation 10

…of 2002, 14 November 2002, considered R v Jurcic [2001] QCA 390; CA No 87 of 2001, 21 September 2001, considered R v Kerwin [2005] QCA 259; CA No 421 of 2004, 26 July 2005, distinguished R v Lester [2004] QCA 34; CA No 325 of 2003, 20 February 2004, distinguished R v Rochester; ex parte A-G (Qld) [2003] QCA 326;…

See all citing cases →

Cases Cited

R v Cole [2004] QCA 109
Citation 1

…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 3…
R v Lester [2004] QCA 34
Citation 2

…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 (…
R v Rochester; ex parte A-G (Qld) [2003] QCA 326
Citation 3

…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 applica…
R v Forster [2002] QCA 495
Citation 4

…2 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…
R v Reeves [2001] QCA 91
Citation 5

…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 CO…

Legislation Cited

No legislation cited in this judgment.

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