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DPP v Kenneison

DPP v Kenneison

Case [2023] VSCA 321 14 December 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0081

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DANNY KENNEISON	Respondent

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JUDGES:	EMERTON P, PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 321	First Revision: 18 December 2023
JUDGMENT APPEALED FROM:	DPP v Kenneison [2022] VCC 593 (Judge Chettle)

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CRIMINAL LAW – Crown appeal – Sentence – Two charges of dangerous driving causing death – Dangerous driving causing serious injury – Two charges of conduct endangering life – Respondent driver of truck with affixed concrete agitator – Momentarily distracted and failed to brake at traffic lights – Sentenced to three year community correction order – Whether sentencing judge erred in applying s 5(2H) Sentencing Act 1991 – Whether sentence manifestly inadequate – Whether residual discretion to not interfere with sentence should be exercised despite error – Appeal dismissed.

Sentencing Act 1991, s 5(2H); Criminal Procedure Act 2009, ss 287, 288.

DPP v Lombardo (2022) 102 MVR 19; DPP v Karazisis (2010) 31 VR 634 applied. Farmer v The Queen [2020] VSCA 140 discussed.

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Counsel
Appellant:		Ms EH Ruddle KC with Mr G Buchhorn
Respondent:		Mr DA Dann KC with Mr PJ Smallwood
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	SLKQ Lawyers

EMERTON P
PRIEST JA
TAYLOR JA:

Introduction and overview

On 30 March 2023, the respondent pleaded guilty in the County Court to two charges of dangerous driving causing death,[1] one charge of dangerous driving causing serious injury[2] and two charges of conduct endangering persons.[3]
[1]Contrary to s 319(1) of the Crimes Act 1958 (‘Crimes Act’).
[2]Contrary to s 319(1A) of the Crimes Act.
[3]Contrary to s 23 of the Crimes Act.
The maximum penalty for dangerous driving causing death is 10 years’ imprisonment. The maximum penalty for the offences of dangerous driving causing serious injury and conduct endangering persons is five years’ imprisonment.
Dangerous driving causing death, when committed by an adult, is a category 2 offence under the Sentencing Act 1991 (‘Act’).[4]
[4]See the definition of category 2 offence in s 3(1)(eb) of the Act.
In sentencing an offender for a category 2 offence, a court must impose a custodial sentence (other than a custodial sentence in combination with a community correction order (‘CCO’)) unless the factors in s 5(2H) of the Act apply. Relevantly, one such factor is where the offender has assisted or has given an undertaking to assist law enforcement authorities in the investigation or prosecution of an offence after sentencing.[5] Another is where there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing a custodial sentence.[6]
[5]Act, s 5(2H)(a).
[6]Act, s 5(2H)(e).
On 14 April 2023, the respondent was sentenced to an aggregate three-year CCO in respect of all charges. The CCO required the completion of 300 hours of unpaid community work over the term of the order and imposed a treatment and rehabilitation condition.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Kenneison

Details

AGLC: Director of Public Prosecutions v Kenneison [2023] VSCA 321
Case: [2023] VSCA 321
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Kenneison, the Court of Appeal was called upon to review a sentence imposed on the respondent, Kenneison, who had been found guilty of two charges of dangerous driving causing death, one charge of dangerous driving causing serious injury, and two charges of conduct endangering life. The incident in question involved Kenneison, the driver of a truck fitted with a concrete agitator, who, while momentarily distracted, failed to brake at traffic lights and subsequently collided with multiple vehicles, resulting in fatalities and serious injuries. The County Court had sentenced Kenneison to a three-year community correction order, which the Director of Public Prosecutions (DPP) appealed on the basis that the sentence was manifestly inadequate. The legal issues for determination included whether the sentencing judge had erred in applying section 5(2H) of the Sentencing Act 1991 and whether the residual discretion to not interfere with the sentence should be exercised despite any such error.

The Court of Appeal considered the principles established in previous cases such as DPP v Lombardo and DPP v Karazisis, where the courts had held that a sentence may be manifestly inadequate if it fails to reflect the seriousness of the offending or adequately address the purposes of sentencing. The Court noted that the primary judge had applied the relevant statutory provisions but may have erred in assessing the appropriate punishment. The Court also considered the discussion in Farmer v The Queen, which highlighted the circumstances in which an appellate court may decline to interfere with a sentence. Despite finding that the sentencing judge had erred in applying section 5(2H), the Court concluded that the error did not substantially affect the overall sentence. Given the exercise of discretion and the totality of the circumstances, the Court determined that the sentence imposed was not manifestly inadequate and declined to interfere.

In light of the foregoing, the appeal was dismissed, and the original sentence of a three-year community correction order was upheld. The Court's decision underscores the importance of correctly applying sentencing principles while also recognising the role of judicial discretion in the sentencing process. The outcome reinforces the principle that appellate courts will not lightly interfere with a sentence that, while perhaps containing some error, still appropriately reflects the gravity of the offence and the aims of sentencing.

Orders