Kerr v R [2008] NSWCCA 201

Kerr v R [2008] NSWCCA 201

The sentencing judge erred only by inadvertently failing to backdate the sentence to account for custody from 9 June 2006 after the Local Court non-parole period expired. The totality ground failed because the resulting sentence was not crushing and, in any event, the applicant was not serving an existing sentence when sentenced in the District Court. The special circumstances ground failed because the limited adjustment was discretionary and no error was shown. The manifest excess ground failed because the offence, involving prolonged unlawful detention, serious violence, threats, a knife, parole status and serious Form 1 matters, was within the upper end of an appropriate range.

Jurisdiction
Australia
Judgment Date
29 August 2008
Procedural Posture
Application for Leave to Appeal Against Sentence for Aggravated Kidnapping / Court of Criminal Appeal; Severity Appeal From District Court Sentence
Outcome
Leave to appeal granted; appeal allowed only as to the commencement and expiration dates of the sentence; applicant resentenced with the same non-parole period and balance of term commencing on 9 June 2006.
Legal Topics
['aggravated Kidnapping' 'backdating Sentence' 'totality Principle' 'special Circumstances' 'manifest Excess' 'form 1 Offences' 'parole']
['criminal Law' 'sentencing'] ['aggravated Kidnapping' 'backdating Sentence' 'totality Principle' 'special Circumstances' 'manifest Excess' 'form 1 Offences' 'parole']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal Against Sentence for Aggravated Kidnapping / Court of Criminal Appeal; Severity Appeal From District Court Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge failed to properly backdate the sentence to account for custody in relation to the offence.' 'Whether the sentencing judge failed to consider and apply the totality principle in light of the Local Court sentence.' 'Whether the sentencing judge, having found special circumstances, failed to reflect that finding adequately in the non-parole period.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge erred only by inadvertently failing to backdate the sentence to account for custody from 9 June 2006 after the Local Court non-parole period expired. The totality ground failed because the resulting sentence was not crushing and, in any event, the applicant was not serving an existing sentence when sentenced in the District Court. The special circumstances ground failed because the limited adjustment was discretionary and no error was shown. The manifest excess ground failed because the offence, involving prolonged unlawful detention, serious violence, threats, a knife, parole status and serious Form 1 matters, was within the upper end of an appropriate range.

Court Disposition

Leave to appeal granted; appeal allowed only as to the commencement and expiration dates of the sentence; applicant resentenced with the same non-parole period and balance of term commencing on 9 June 2006.

Orders

  • ['Leave to appeal be granted.' 'Appeal allowed.' 'Quash the sentence in the District Court only to the extent of the commencement and expiration dates of the sentence.' 'The applicant is sentenced to imprisonment with a non-parole period of 8 years to commence on 9 June 2006 and to expire on 8 June 2014 with a...