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Kennedy (a pseudonym) v The Queen

Kennedy (a pseudonym) v The Queen

Case [2015] VSCA 49 11 May 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0155
DALE KENNEDY (A PSEUDONYM)[1]	Appellant
v
THE QUEEN	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	MAXWELL P, WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2015
DATE OF JUDGMENT:	11 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 49
JUDGMENT APPEALED FROM:	DPP v [Kennedy] (Unreported, County Court of Victoria, Judge Tinney, 23 June 2014)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Sentence of three years and six months’ imprisonment, non-parole period one year and six months – Whether manifestly excessive – Sustained attack – Victim rendered unconscious – Provocation – Self-report – Remorse – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Matthew White & Associates
For the Respondent	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA
BEACH JA:

Introduction

On 15 August 2013, the appellant (‘DK’)[2] pleaded guilty to one charge of intentionally causing serious injury. Almost a year later, on 23 June 2014, he was sentenced as follows:
[2]The abbreviation is used for ease of reference only.

Charge on Indictment Offence Maximum Sentence

1 Intentionally causing serious injury [Crimes Act 1958 s 16] 20 years [Crimes Act 1958 s 16] 3 years 6 months’ imprisonment

Total Effective Sentence: 3 years 6 months’ imprisonment

Non-Parole Period: 1 year 6 months’ imprisonment

Pre-sentence Detention Declared: 62 days

6AAA Statement: 6 years’ imprisonment (4 years’ NPP)

DK was granted leave to appeal on the single ground that the sentence imposed was manifestly excessive. For reasons which follow, we have concluded that the appeal must be dismissed.

Circumstances of the offending

DK and the complainant (‘R’) had known each other for approximately 25 years. DK and his son, who was aged 17 at the time, were staying with R at his property in Thornbury on the evening of Friday 2 September 2011. They planned to depart on an early morning train to Mildura on Saturday 3 September 2011.

DK and his son arrived at R’s property at 9:00 pm. At some time thereafter, DK left the property and spent the night at a friend’s house, while his son stayed at R’s property.

DK returned to R’s property at 7:00 am to collect his son. Upon discovering that he was not there, DK telephoned his son, who told him that R had ‘jumped in [his] bed and grabbed [him]’.

After the phone call ended, DK immediately turned to R, who had been standing nearby, and punched him to the left side of his face. He continued to punch R repeatedly to the head, as he began to bleed from his nose, mouth and eyes. R fell to the floor and DK began kicking him in the ribs with ‘a fair bit of force’, such that DK’s shoes had blood all over…

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 Kennedy (a pseudonym) v The Queen

Details

AGLC: Kennedy (a pseudonym) v The Queen [2015] VSCA 49
Case: [2015] VSCA 49
Decision Date: 11 May 2015

CaseChat Overview and Summary

In the matter of Kennedy, a pseudonymous appellant, against The Queen, the High Court of Australia heard an appeal concerning the severity of a sentence imposed on the appellant for intentionally causing serious injury. The case involved a sustained attack on the victim, who was rendered unconscious, and was prosecuted under the criminal law provisions for causing grievous bodily harm. The appellant argued that the sentence was manifestly excessive, taking into account factors such as provocation, the appellant’s self-report, and expressions of remorse. The primary issue before the court was whether the sentence of three years and six months’ imprisonment, with a non-parole period of one year and six months, was appropriate in light of the circumstances of the offence and the appellant’s mitigating factors.

The court meticulously examined the sentencing principles and the statutory framework that govern the imposition of penalties for such offences. It considered the appellant's role in the incident, the severity of the harm inflicted, and the need for the sentence to serve purposes such as deterrence and retribution. The court also assessed the mitigating factors presented, including the appellant’s admission of guilt, expressions of remorse, and the impact of any provocation. The High Court found that the trial judge had appropriately balanced these factors in determining the sentence. The court held that the sentence was neither manifestly excessive nor inadequate, given the nature of the crime and the need to uphold the gravity of the legal system's response to serious violent offences.

Consequently, the appeal was dismissed by the court. The decision underscored the importance of considering all relevant factors in sentencing, including both aggravating and mitigating circumstances. The court affirmed that the trial judge had correctly applied the relevant legal principles and had exercised judicial discretion appropriately in this instance. The final orders of the court upheld the original sentence, reflecting the gravity of the offence and the necessity for the sentence to serve its intended purposes.

Orders