Regina v Kershaw [2005] NSWCCA 56

New South Wales Court of Criminal Appeal

CITATION: Regina v Kershaw [2005] NSWCCA 56

HEARING DATE(S): 18/02/2005

JUDGMENT DATE: 1 March 2005

JUDGMENT OF: Bryson JA at 1; Barr J at 28; Hoeben J at 29

DECISION: (1) Leave to Appeal granted.; (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentencing - sexual intercourse without consent Crimes Act s. 61 I - within marriage relationship - breach of AVO - consideration of forgiving and optimistic attitude of complainant - sentence imprisonment 5y non-parole 2y 6m not manifestly excessive - appeal dismissed.

Crimes Act 1900 , s.61I LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s.32

R v. Comert [2004] NSWCCA 125 CASES CITED: R v. Glen (unreported) NSWCCA 19 December 1994

Brett David Kershaw - Applicant PARTIES: Crown - Respondent

FILE NUMBER(S): CCA 2004/2592

R. Hulme SC - Applicant COUNSEL: D. Arnott - Respondent

S E O'Connor, Legal Aid Commission - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3129

LOWER COURT JUDICIAL OFFICER: Sides DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2592

BRYSON JA BARR J HOEBEN J

Tuesday 1 March 2005 Regina v. Brett David KERSHAW Judgment 1 BRYSON JA: The applicant Brett David Kershaw applies for leave to appeal against the sentence imposed on him by his Honour Judge Sides Q.C. in the District Court at Campbelltown on Friday 26 March 2004. On 3 November 2003 the applicant pleaded guilty to a charge on indictment that on 2 December 2002 at Tahmoor he had sexual intercourse with Karina Kershaw without her consent and knowing she was not consenting. Mrs Kershaw and the applicant were married in or about 1987 and they are still married. Under s.61I of the Crimes Act 1900 the maximum penalty for the offence charged is imprisonment for fourteen years. The proceedings were listed for trial at Campbelltown on 3 November 2003 but the applicant pleaded guilty when indicted. The learned Judge heard evidence and proceedings relating to the plea of guilty on several days including 12 March 2004. On 26 March 2004 his Honour made Remarks on Sentence and sentenced the applicant to five years' imprisonment, which commenced on 26 March 2004, with a non-parole period of two and a half years so that eligibility for parole is to commence on 25 September 2006. When sentencing the applicant the learned Judge took into account a further offence on a Form 1 document under s.32 of the Crimes (Sentencing Procedure) Act 1999 of contravening an Apprehended Violence Order (AVO). The ground of appeal is that the sentence was manifestly excessive. 2 This is the first custodial sentence to be imposed on the applicant. The applicant had several previous convictions, including Children's Court matters and motoring offences, which are not of present significance. Presently significant is a conviction for common assault against Mrs Kershaw at Picton Local Court on 27 July 1998; on this occasion the applicant entered into a Recognizance to be of good behaviour for twelve months, to accept the supervision of the New South Wales Probation and Parole Service, and to attend Anger Management counselling as directed. 3 A Statement of Agreed Facts was admitted in evidence. The Agreed Facts may be summarised for present purpose as follows. Mrs Kershaw (39 years old), and Mr Kershaw (39 years old) have been married for about 16 years. In 2002 they lived together at 27 Straun Street, Tahmoor with their one daughter, Samara Kershaw who was then aged eight years old. Mrs Kershaw started sleeping on a mattress in the lounge-room after an argument on Thursday 28 November 2002. On Sunday 1 December 2002 Mr and Mrs Kershaw and their eight-year-old daughter were at home. There were arguments between the applicant and Mrs Kershaw through the afternoon and evening. During the evening the applicant pushed Mrs Kershaw really hard; she stumbled back and was upset, and she rang the police who attended and removed the applicant from the house, and obtained a Telephone Interim AVO. That night Mrs Kershaw slept on the mattress in the lounge-room and the applicant spent the night elsewhere. 4 The AVO had effect for 14 days and was accompanied by a Summons returnable at the Local Court of Moss Vale on 5 December 2002. The AVO contained standard orders restraining intimidating conduct and other conduct directed against Mrs Kershaw as the protected person, and additional orders restraining the applicant from entering premises where Mrs Kershaw resided or worked, specifically naming the house at 27 Struan Street, Tahmoor, whilst under the influence of alcohol, with some further supplementary restraints. That is to say, the applicant was not restrained against being at the house, but was restrained against being at the house or approaching Mrs Kershaw when under the influence of alcohol, liquor and/or illicit drugs.