REGINA v. KERR [2003] NSWCCA 234

REGINA v. KERR [2003] NSWCCA 234

The sentencing judge was required to give proper consideration to the way Oliver had been charged and dealt with, and it was insufficient to dismiss parity as irrelevant. Oliver's very lenient sentence for conduct implicated in the same events should have alerted the sentencing judge to the need to avoid gross disproportion. Together with new material concerning the applicant's background and rehabilitation prospects, this enlivened the Court's jurisdiction to resentence. A lengthy sentence remained necessary for the serious, violent offence and the applicant's criminal history, but the original effective sentence was too long in light of the justified sense of grievance and changed...

Jurisdiction
Australia
Judgment Date
26 August 2003
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave granted to extend time; leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to a head sentence of nine years and eight months with a non-parole period of seven years and three months.
Legal Topics
['aggravated Robbery' 'appeal Against Sentence' 'manifest Excess' 'parity in Sentencing' 'sense of Grievance' 'aboriginal Offenders' 'extension of Time']
['criminal Law' 'sentencing'] ['aggravated Robbery' 'appeal Against Sentence' 'manifest Excess' 'parity in Sentencing' 'sense of Grievance' 'aboriginal Offenders' 'extension of Time']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to apply for leave to appeal against sentence.' 'Whether the sentence imposed for robbery in circumstances of aggravation was manifestly excessive.' 'Whether the sentence was disproportionate to the dispositions of the co-offenders and gave rise to a justified sense of grievance.' "Whether further material about the applicant's background, Aboriginality and prospects of rehabilitation affected the sentencing assessment."]

Ratio Decidendi

The sentencing judge was required to give proper consideration to the way Oliver had been charged and dealt with, and it was insufficient to dismiss parity as irrelevant. Oliver's very lenient sentence for conduct implicated in the same events should have alerted the sentencing judge to the need to avoid gross disproportion. Together with new material concerning the applicant's background and rehabilitation prospects, this enlivened the Court's jurisdiction to resentence. A lengthy sentence remained necessary for the serious, violent offence and the applicant's criminal history, but the original effective sentence was too long in light of the justified sense of grievance and changed...

Court Disposition

Leave granted to extend time; leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to a head sentence of nine years and eight months with a non-parole period of seven years and three months.

Orders

  • ['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...