Kerr v R [2008] NSWCCA 201

New South Wales Court of Criminal Appeal

CITATION: Kerr v R [2008] NSWCCA 201

HEARING DATE(S): 22 July 2008

JUDGMENT DATE: 29 August 2008

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Price J at 3

DECISION: (i) Leave to appeal be granted. (ii) Appeal allowed. (iii) Quash the sentence in the District Court only to the extent of the commencement dates of the sentence. 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 balance of term of 3 years expiring on 8 June 2017. The earliest date the applicant is eligible for release to parole is 8 June 2014.

CATCHWORDS: Criminal Law - sentencing - aggravated kidnapping - inadvertent failure to properly backdate sentence - not a crushing sentence - totality principle not applicable not serving existing sentence - limited finding of special circumstances - no error - circumstances of unlawful detention aggravated by actual use of violence and real threat of violence - presence of a weapon - offences on Form 1 - sentence within the upper end of an appropriate range - not manifestly excessive.

Crimes Act 1900 s 86(2)(b), s 86(1), s 86(2), s 86(3), LEGISLATION CITED: s 154A(1)(a) Crimes (Sentencing Procedure) Act 1999 s 24(a), s 44, s 44(2),

CATEGORY: Principal judgment

Huntington v Regina [2007] NSWCCA 196 Mulato v Regina [2006] NSWCCA 282 R v Fidow [2004] NSWCA 172 CASES CITED : R v Johnson [2004] NSWCCA 140 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v MMK [2006] NSWCCA 272 R v Newell [2004] NSWCCA 183 Regina v Cramp [2004] NSWCCA 264