Kershaw v R [2009] NSWCCA 19 | Case summary

9 February 2009 Errol Alfred KERSHAW v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hulme DCJ at Port Macquarie District Court. The applicant had pleaded guilty to a single count of aggravated breaking and entering and committing a serious indictable offence. The offence was stealing and the circumstance of aggravation was his knowledge that there was a person inside the house at the time. His Honour sentenced the applicant to imprisonment consisting of a non-parole period of two years and nine months commencing on 31 August 2007 and expiring on 30 May 2010 with a balance term of one year. 2 The facts were that at about 8.30pm on Monday 18 June 2007 Mr Graham Thomas aged fifty seven years was at his home in Kempsey. Mr Thomas is wheelchair bound as a result of amputation of one of his legs and he was at the time operating a computer. He heard a knock on the door and opened it to find an aboriginal male who spoke to him somewhat incoherently but Mr Thomas understood him to say "cigarettes, beer". Mr Thomas told him that he neither drank nor smoked and the caller left. The caller was the applicant. 3 A little while later the complainant heard some noises in the kitchen but he initially saw nothing untoward and eventually retired to bed. Later during the night he noticed that some beer was missing from the refrigerator and his back door was open. He locked the door. On the following day he noticed that a flyscreen had been cut and a window which was normally closed and locked had been opened. Further investigation showed that other items were missing. The total value of missing items was about $200. 4 In the meantime at about 9 pm on the previous night, that is to say about half an hour after the applicant called at the house he was seen by police, who were patrolling the area, to be walking along the railway track. He was stopped and found to be in possession of a number of items which were later able to be identified as property coming from Mr Thomas' house. At the time, of course, police were unaware as to what had occurred at the house. The applicant gave his name to the constables who noticed that he smelt of alcohol, was slurring his speech and seemed to be agitated. He was permitted to go on his way. 5 A few days later as a result of observations on a computer system one of the constables recognized items that he had seen in the possession of the applicant as those which were reported missing by Mr Thomas as a result of the apparent entry into his home. 6 Police were unable to locate the applicant for a time, however on 31 August 2007 they became aware that he was in custody in Sydney. 7 On 22 November 2007 the applicant entered a plea of guilty to the offence abovementioned before Taree Local Court and he was committed for sentence to the Port Macquarie District Court. 8 As the learned sentencing judge observed, the applicant has a criminal history commencing with charges when he was aged only fourteen years. The variety of offences includes some twelve matters of dishonesty as well as offences of sexual assault, assaulting police, and damaging property. At the time of this offence the applicant was on a bond to be of good behaviour in respect of two offences of assaulting police. The conditions of the recognizance included an acceptance by the applicant of supervision by Probation and Parole officers, accepting the guidance of a psychiatrist or psychologist, taking medication as prescribed and attending for rehabilitation, counselling and educational development in accordance with medical advice. 9 Two grounds of appeal have been presented although they both agitate the same complaint. They are expressed as follows:

Ground 2 In consequence of the error asserted in Ground 1 hereof, the learned sentencing judge erred in using a period of seven years rather than five years as a benchmark in arriving at an appropriate sentence." 10 The transcript of proceedings shows that the Crown Prosecutor had stated to his Honour: "Whilst this is a plea of guilty and the Crown concedes that it is at the first available opportunity and he should receive the full benefit for that(,) a standard non-parole period of seven years does apply and although not strictly relevant to the plea of guilty it certainly is a guide post in sentencing him today." 11 His Honour acted on that information and at the outset of his remarks on sentence referred to a prescribed maximum penalty of imprisonment for twenty years and standard non-parole period of seven years. Later, in his remarks he indicated his application of the latter in these terms: "Whilst not imposing the standard non-parole period I must bear it in mind as a benchmark, just as I do the maximum penalty, as to the appropriate sentence to be imposed." 12 It is correctly conceded that his Honour was misinformed and the standard non-parole period is five years rather than seven years. 13 The Crown submits that despite the erroneous use of the inflated standard non-parole period no lesser sentence is warranted and seeks the dismissal of the appeal. 14 It can scarcely be doubted that the applicant's judgment on the occasion of the offence must have been seriously affected by his over consumption of intoxicating liquor. His incoherence when he called at the house and the observations by police officers when he was stopped make this obvious. That provides some explanation for the applicant's offending but it offers little weight to mitigation. His prior record would operate against attracting leniency and it was a serious matter of aggravation that he was on a recognizance to be of good behaviour conditioned as above set out when he offended. 15 Nevertheless, it is plain that his Honour had reference to a benchmark which was higher than that prescribed by statute. Although it cannot be determined that some arithmetical proportion of his assessment is reflected by his use of the inflated incorrect standard non-parole period it should be concluded that, had the lesser correct figure been used for reference, the assessment would have been less to some extent. The applicant has succeeded in demonstrating a material error and there should be some downward adjustment of sentence. 16 There has been tendered for the purpose of resentence a report by a psychologist, Ms Michelle Player. That report is long and detailed, but in particular it sets out some information about the personal background of the applicant which was not before the sentencing judge. 17 In addition to the psychologist there is a statement by the applicant of remorse which also was absent before the sentencing judge. A considerable part of the recommendations in the report by the psychologist refers to her conclusion that it would be desirable for the applicant, when released to parole, to be admitted to a residential rehabilitation programme. It is beyond the power of this Court to enforce such a recommendation but it is a matter that for my part I would have brought to the attention of the Parole Authority when they come to the date upon which the applicant will be released to parole. 18 The question of special circumstances needs to be considered upon resentence. Having regard in particulars to the matters set out in the psychological report and to the prospect of the applicant being granted the benefit of some rehabilitation, I am of the view that the statutory proportion between non-parole period and total sentence should be varied in favour of the applicant. 19 I therefore propose the following orders:

Kershaw v R

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Judgment (14 paragraphs)

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