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Kennedy v R

Kennedy v R

Case [2022] NSWCCA 215 7 October 2022

Appeal

Sentencing

Failure to Take into Account a Relevant Consideration

Calculation Error

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kennedy v R [2022] NSWCCA 215
Hearing dates: 26 September 2022
Decision date: 07 October 2022
Before: Garling J at [1]; Adamson J at [2]; N Adams J at [58]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal to correct the commencement date of the sentence.
(3)   Set aside the sentence imposed by Williams DCJ on 21 June 2021 and, in lieu thereof, impose a sentence of 7 years imprisonment commencing on 23 April 2019 and expiring on 22 April 2026 with a non-parole period of 3 years and 8 months’ imprisonment commencing on 23 April 2019 and expiring on 22 December 2022.
(4)   The applicant will first be eligible for release on parole on 22 December 2022.

Catchwords:
CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in limiting consideration of Bugmy and Fernando factors to special circumstances finding — where no such error demonstrated having regard to reasons as a whole
CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in not finding that lack of planning was a mitigating factor — domestic violence offence — where no error shown
CRIME — Appeals — Appeal against sentence — Re-sentence — calculation error for commencement date of sentence

Legislation Cited:
Crimes Act 1900 (NSW), s 86
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
Criminal ProcedureAct 1986 (NSW), s 166

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cohen v R [2011] NSWCCA 165
Fuller v R [2022] NSWCCA 203
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
RvFernando (1992) 76 A Crim R 58
R v Hopkinson; R v Robertson [2022] NSWCCA 80
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category: Principal judgment
Parties: Robert Dwayne Kennedy (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
D Scully (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/65271
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 June 2021

Before:

Williams DCJ

File Number(s):

2019/65271

HEADNOTE

[This headnote is not to be read as part of the judgment]

Robert Kennedy (the applicant) was convicted at trial by Williams DCJ, sitting as judge alone, of a single count of detaining a person without their consent with intent to obtain an advantage and occasion actual bodily harm contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). On 21…

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 v R

Details

AGLC: Kennedy v R [2022] NSWCCA 215
Case: [2022] NSWCCA 215
Decision Date: 07 October 2022

CaseChat Overview and Summary

The appeal against sentence in Kennedy v R was brought by the appellant, Kennedy, who was convicted of domestic violence offences. Kennedy challenged the trial judge's sentencing decision on multiple grounds, arguing that the judge had failed to properly consider certain mitigating factors and had made an error in calculating the commencement date of the sentence. The appeal was heard in the High Court of Australia.

The legal issues in the case centred on whether the trial judge had erred in the application of sentencing principles. Kennedy argued that the trial judge had limited the consideration of the Bugmy and Fernando factors to the special circumstances finding, which was incorrect. Kennedy also contended that the trial judge had failed to consider the lack of planning as a mitigating factor. Additionally, the appellant argued that the trial judge had made an error in calculating the commencement date of the sentence.

The High Court found that the trial judge had not erred in limiting the consideration of the Bugmy and Fernando factors to the special circumstances finding. The Court held that the reasons provided by the trial judge demonstrated that all relevant considerations were taken into account. The Court also found no error in the trial judge's failure to consider the lack of planning as a mitigating factor, as this was not a significant mitigating factor in the context of domestic violence offences. Lastly, the Court identified an error in the calculation of the commencement date of the sentence and ordered a re-sentencing. The Court upheld the conviction but remitted the matter to the trial court for re-sentencing.

Orders