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…
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- Kennedy (a pseudonym) v The Queen [2015] VSCA 49
- Case
- [2015] VSCA 49
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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