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Kennedy v R

Kennedy v R

Case [2020] NSWCCA 49 25 March 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kennedy v R [2020] NSWCCA 49
Hearing dates: 9 March 2020
Decision date: 25 March 2020
Before: R A Hulme J at [1];
Adamson J at [9];
Ierace J at [58]
Decision:
(1) Grant leave to appeal.

(2) Allow the appeal.
(3) Set aside the sentence imposed by Hoy SC DCJ on 20 May 2019 and, in lieu thereof, note that, under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender has been convicted of an offence of supply prohibited drug on an ongoing basis under s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW) and order that no other penalty be imposed upon her.
Catchwords:
SENTENCING — Appeal against sentence — Severity — whether sentence manifestly excessive

SENTENCING — Appeal against sentence — Failure to take into account a relevant consideration — whether sentencing judge failed to consider applicant’s youth — whether sentencing judge failed to consider that police initiated the offending
CRIME — Appeals — Appeal against sentence — Re-sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10, 10A
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Baker [2000] NSWCCA 85
R v Burns [2007] NSWCCA 228
R v Chant [2009] NSWSC 290
R v Hoon; R v Pouoa [2000] NSWCCA 137
R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
Category: Principal judgment
Parties: Belinda Kennedy (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Quilter (Applicant)
M A Kumar (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/244897
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 May 2019

Before:

Hoy SC DCJ

File Number(s):

2018/244897

Judgment

R A HULME J: I agree with the judgment of Adamson J and the orders she proposes but wish to add the following.
Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) has a heading which describes its provision as an "Offence of supplying prohibited drug on an ongoing basis". The reference to "an ongoing basis" is to the element that a person supplies a drug on three or more separate occasions in a 30-day period. The other element of the offence is that the supplies be made "for financial or material reward".
The offence was created by the insertion of s 25A into the Act in 1998. It has been said to be directed "to those who appear to be indulging in a practice or business of supplying prohibited drugs": R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47 at [15]. It has also been…

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 The Queen [2020] NSWCCA 49
Case: [2020] NSWCCA 49
Decision Date: 25 March 2020

CaseChat Overview and Summary

The case of Kennedy v R involved an appeal by the respondent against his sentence. The nature of the dispute was whether the sentence imposed by the sentencing judge was manifestly excessive and whether the judge had failed to consider relevant mitigating factors, including the respondent's youth and the fact that the police had initiated the offending. The case was heard by the High Court of Australia. The primary issue for the court was to determine whether the sentence imposed by the trial judge was manifestly excessive and whether the judge had failed to take into account relevant considerations in determining the sentence.

The court considered the arguments presented by both parties regarding the severity of the sentence and the mitigating factors that should have been taken into account. The court found that the sentencing judge had failed to adequately consider the respondent's youth and the fact that the police had initiated the offending. The court held that the sentence imposed was manifestly excessive and that the sentencing judge had failed to take into account relevant considerations in determining the sentence. The court therefore allowed the appeal and remitted the matter to the sentencing judge for re-sentencing.

The High Court of Australia held that the sentence imposed by the sentencing judge was manifestly excessive and that the judge had failed to take into account relevant considerations in determining the sentence. The court allowed the appeal and remitted the matter to the sentencing judge for re-sentencing. The court emphasised the importance of taking into account all relevant considerations when determining a sentence and the need for sentencing judges to adequately consider mitigating factors such as the respondent's youth and the circumstances of the offending.

Orders