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Kendall v R

Kendall v R

Case [2015] NSWCCA 13 23 February 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Kendall v R
Medium Neutral Citation:	[2015] NSWCCA 13
Hearing Date(s):	12 February 2015
Decision Date:	23 February 2015
Before:	Hoeben CJ at CL at [1] Johnson J at [54] Hamill J at [55]
Decision:	Leave to appeal granted.
Catchwords:	CRIMINAL LAW – sentence appeal – offences of break enter and commit a serious indictable offence being an indecent assault and intentionally inflict actual bodily harm to have sexual intercourse – whether error in assessment of objective seriousness of offending – whether sentences manifestly excessive – whether misstatements of facts in sentencing judgment were indicative of error – factual errors minor – no error in assessment of objective seriousness – sentence not manifestly excessive – appeal against sentence dismissed.
Legislation Cited:	Crimes Act 1900 - s 61K(a), s 112(2) Crimes (Sentencing Procedure) Act 1999 – s53A Criminal Appeal Act 1912 – s6(3)
Cases Cited:	Little v R [2010] NSWCCA 210 Markarian v R [2005] HCA 25; 228 CLR 357 Mulato v Regina [2006] NSWCCA 282 R v Andrews [2011] NSWCCA 24 R v Bilal Skaf [2005] NSWCCA 297 R v Shillingsworth [2003] NSWCCA 272 Regina v Twala (NSWCCA, unreported, 4 November 1994) Thompson-Davies v R [2013] NSWCCA 75 Vuni v R [2006] NSWCCA 171 YS v R [2010] NSWCCA 98
Category:	Principal judgment
Parties:	Michael Bruce Kendall - Applicant Regina – Respondent Crown
Representation:	Counsel: KH Averre - Applicant N Adams – Respondent Crown Solicitors: SE O’Connor – Legal Aid NSW - Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2012/218919
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	29 November 2013
Before:	Maiden SC DCJ
File Number(s):	2012/218919

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

After a trial before Maiden SC DCJ and a jury, the applicant was found guilty on 30 September 2013 of the following offences:
(a)Break enter and commit a serious indictable offence, indecent assault, in circumstances of aggravation contrary to s112(2) Crimes Act 1900.
(b)Intentionally inflict actual bodily harm with intent to have sexual intercourse, contrary to s61K(a) of the Crimes Act 1900.

The maximum penalty for an offence contrary to s112(2) is imprisonment for 20 years with a standard non-parole period of 5 years. The maximum sentence for an offence contrary to s61K(a) is imprisonment for 20 years.
The applicant was sentenced by his Honour to an aggregate term of imprisonment with a non-parole period of 6 years to commence 7 March 2013 and to expire 6 March 2019 and an additional term of 3 years to expire on 6 March 2022.
The applicant seeks leave to appeal against that sentence on the following grounds:

Ground 1 – The sentencing judge erred in his assessment of the offending and finding that it was “near what is described as the highest level of offending behaviour”.

Ground 2 – The sentencing judge erred in finding that the applicant was on parole at the time…

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 Kendall v R

Details

AGLC: Kendall v R [2015] NSWCCA 13
Case: [2015] NSWCCA 13
Decision Date: 23 February 2015

CaseChat Overview and Summary

In the case of Kendall v R, the appellant was convicted of breaking and entering a dwelling and committing a serious indictable offence by committing an indecent assault and intentionally inflicting actual bodily harm with the intent to have sexual intercourse. The appellant appealed against the sentence imposed by the trial judge, arguing that the assessment of the objective seriousness of the offending was erroneous, that the sentence was manifestly excessive, and that there were misstatements of fact in the sentencing judgment indicative of error. The central issue before the court was whether the trial judge's assessment of the seriousness of the offending was correct and if the sentence imposed was appropriate given the circumstances.

The court examined the trial judge's sentencing remarks and found that while there were minor factual errors, these did not affect the overall assessment of the objective seriousness of the offending. The court concluded that the trial judge correctly assessed the gravity of the crimes and that the sentence was not manifestly excessive. The misstatements of fact identified by the appellant did not undermine the fundamental conclusions drawn by the trial judge in the sentencing judgment. The appeal against the sentence was therefore dismissed, as the court found no grounds for interference with the sentence imposed by the trial judge.

The court's reasoning was grounded in the principles of sentencing and the role of the appellate court in assessing the trial judge's exercise of discretion. The court emphasised that appellate courts should only interfere with a sentence if it is manifestly excessive or if there has been a significant error in the assessment of the seriousness of the offending. In this case, the court found that neither condition was met, and the sentence reflected a fair and balanced approach to the appellant's crimes. The appeal was dismissed, and the original sentence was upheld.

Orders