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Kennedy v R

Kennedy v R

Case [2017] NSWCCA 193 16 August 2017

Appeal

Aggravated & Exemplary Damages

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kennedy v R [2017] NSWCCA 193
Hearing dates: 7 August 2017
Date of orders: 16 August 2017
Decision date: 16 August 2017
Before: Macfarlan JA at [1]
Davies J at [2]
Button J at [100]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeals – application to withdraw plea – aggravated sexual intercourse without consent where victim under the authority of the applicant - applicant sexually abused stepdaughter – applicant pleaded guilty – applicant represented by solicitor and counsel when plea entered - whether stepdaughter under the applicant’s “authority” – whether applicant still in relationship with victim’s mother - nothing to impugn the plea – no miscarriage of justice demonstrated – application to withdraw plea refused
CRIMINAL LAW – appeals – appeal against sentence – four counts of aggravated sexual intercourse without consent - applicant sentenced to aggregate term of 17 years’ imprisonment – whether sentencing judge failed to give adequate weight to applicant’s expression of remorse – whether sentencing judge failed to assess the level of objective seriousness of the offences – whether the sentencing judge erred in categorising charges as offences against a child – whether sentencing judge erred in finding that offences took place in victim’s home and that this was an aggravating factor – whether sentence is manifestly excessive – no error of law or principle demonstrated – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Delaney v R; R v Delaney [2013] NSWCCA 150
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jonson v R [2016] NSWCCA 286
Khamis v R [2014] NSWCCA 152
Langbein v R [2013] NSWCCA 88
Majid v R [2010] NSWCCA 121
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Ming Yuk (Raymond) Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37
MM v R [2016] NSWCCA 235
R v Brown [2012] NSWCCA 199
R v Howes (2000) 2 VR 141; [2000] VSCA 159; (2000) 116 A Crim R 249
R v Lulham [2016] NSWCCA 287
R v Miller [2001] NSWCCA 209
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Roy Noel Kennedy (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Jauncey (Applicant)
N Adams (Respondent)
Solicitors:
P Murphy (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/61832
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 March 2016

Before:

Conlon DCJ

File Number(s):

2014/61832

Judgment

MACFARLAN JA: I agree with Davies J.
DAVIES J:…

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 [2017] NSWCCA 193
Case: [2017] NSWCCA 193
Decision Date: 16 August 2017

CaseChat Overview and Summary

In the case of Kennedy v R, the appellant faced charges of aggravated sexual intercourse without consent in relation to his stepdaughter. The appellant entered a guilty plea and was sentenced to an aggregate term of 17 years’ imprisonment. The appellant sought to withdraw his guilty plea and appeal against his sentence. The High Court of Australia was tasked with determining the validity of the plea withdrawal and the appropriateness of the sentence.

The primary legal issues before the court were whether the stepdaughter was under the appellant’s “authority” as required by the statutory definition of the offence, and whether the sentencing judge erred in various aspects of the sentencing process. The court examined the nature of the relationship between the appellant and the victim’s mother, the expression of remorse by the appellant, and the assessment of the objective seriousness of the offences. The court also considered whether the sentencing judge correctly categorised the charges and the impact of the location of the offences on the sentence.

The court found that the stepdaughter was indeed under the appellant’s authority, as the relationship between the appellant and the victim’s mother continued at the time of the offences. The court further held that there was no miscarriage of justice that would warrant the withdrawal of the plea. Regarding the appeal against the sentence, the court determined that the sentencing judge did not fail to adequately consider the appellant’s expression of remorse, the objective seriousness of the offences, or the location of the offences. The court also found that the sentence was not manifestly excessive.

Ultimately, the application to withdraw the guilty plea was refused, and the appeal against the sentence was dismissed. The court held that no error of law or principle was demonstrated in the original sentencing process.

Orders