Kerwin v R [2018] NSWCCA 23

Kerwin v R [2018] NSWCCA 23

The sentencing judge failed to properly consider and articulate the effect of the applicant's intellectual disability on moral culpability and the relevance of general deterrence. As a causal connection was established between the disability and the offending, the error vitiated the sentencing discretion, warranting a re-sentence with an appropriate reduction in sentence.

Jurisdiction
Australia
Judgment Date
26 February 2018
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence; Determination on the Appeal
Outcome
Appeal allowed; leave to appeal granted; sentence quashed and re-sentence imposed
Legal Topics
['sentencing' 'appeal Against Sentence' 'moral Culpability' 'intellectual Disability' 'general Deterrence']
['criminal Law'] ['sentencing' 'appeal Against Sentence' 'moral Culpability' 'intellectual Disability' 'general Deterrence']

Case Brief

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Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence; Determination on the Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessment of moral culpability of the offender' 'Whether the sentencing judge erred in failing to make a finding as to the effect of mental condition on weight given to general deterrence']

Ratio Decidendi

The sentencing judge failed to properly consider and articulate the effect of the applicant's intellectual disability on moral culpability and the relevance of general deterrence. As a causal connection was established between the disability and the offending, the error vitiated the sentencing discretion, warranting a re-sentence with an appropriate reduction in sentence.

Court Disposition

Appeal allowed; leave to appeal granted; sentence quashed and re-sentence imposed

Orders

  • ['Leave to appeal granted.' 'Appeal upheld.' 'Quash the sentence imposed by Charteris A-DCJ on 14 December 2016.' '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.' 'Note that the...