Kershaw v R [2009] NSWCCA 19

New South Wales Court of Criminal Appeal

CITATION: Kershaw v R [2009] NSWCCA 19

HEARING DATE(S): 9 February 2009 JUDGMENT OF: Grove J at 1; Blanch J at 20; Kirby J at 21

EX TEMPORE JUDGMENT DATE: 9 February 2009

DECISION: Appeal against sentence allowed. Appellant resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Judge misinformed as to prescribed standard non-parole period - Misinformation specified a longer than correct period - Express reference to mistakenly inflated period - Material error shown - Sentence reduced

CATEGORY: Principal judgment

PARTIES: Errol Alfred KERSHAW - Appellant REGINA - Respondent

FILE NUMBER(S): CCA 2007/11442

COUNSEL: W Hunt - Appellant N Noman - Respondent/Crown

SOLICITORS: S O'Connor - Legal Aid Commission S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0326

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 5 December 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/11442

GROVE J BLANCH J KIRBY J

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: