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Kennedy v R

Kennedy v R

Case [2008] NSWCCA 21 22 February 2008

Sentencing

Mens Rea & Intention

Psychiatric Status

Objective Seriousness

Criminal Law

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Reported Decision: 181 A Crim R 185

New South Wales

Court of Criminal Appeal

CITATION: KENNEDY, James Anthony v R [2008] NSWCCA 21
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 February 2008

JUDGMENT DATE:
22 February 2008

JUDGMENT OF: Beazley JA at 1; James J at 55; Kirby J at 56

DECISION: 1. Grant leave to appeal
2. Allow the appeal
3. Quash the sentence imposed by Woods ADCJ on 27 October 2006
4. Impose the following sentence:
The applicant is sentenced to a term of imprisonment consisting of a non-parole period of 3 years dating from 5 October 2005 and expiring on 4 October 2008 with a balance of term of 3 years commencing on 5 October 2008 and expiring on 4 October 2011.

CATCHWORDS: CRIMINAL LAW – sentencing – characterisation of offence as “upper level” of objective seriousness – relevance of psychiatric status to objective seriousness of the offence – offence properly characterised as mid-range of seriousness - CRIMINAL LAW – sentencing – schizophrenia - applicant’s failure to take medication - whether psychological status was applicant’s own fault – proof beyond reasonable doubt of matters adverse to accused – failure of trial judge to take into account mental disorder in assessing objective seriousness - CRIMINAL LAW – sentencing – application of ss 21A, 54A and 54B of Crimes (Sentencing Procedure) Act 1999 - maliciously inflicting grievous bodily harm with intent – whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900, ss 33, 35
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 54A and 54B
Criminal Appeal Act 1912, s 6(3)

CASES CITED: GDP (1991) 53 A Crim R 112
Markarian v R [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
R v Hemsley [2004] NSWCCA 228
R v Israil [2002] NSWCCA 255
R v Jancescki (No 2) [2005] NSWCCA 288; (2005) 44 MVR 328
R v Marshall [2007] NSWCCA 24
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Thomson; R v Houlton [2007] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Wright (1997) 93 A Crim
R 48The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402

PARTIES: James Anthony Kennedy (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5246

COUNSEL: D Arnott SC (Applicant)
H Cox (Respondent)

SOLICITORS: Aborginal Legal Service (Dubbo) (Applicant)
Solicitor for Public Prosecutions (Regina)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0015

LOWER COURT JUDICIAL OFFICER: Woods ADCJ

LOWER COURT DATE OF DECISION: 27 October 2006

- 10 -

CCA 2006/5246

BEAZLEY JA
JAMES J
KIRBY J

22 February 2008

James Anthony KENNEDY v Regina

Headnote

The applicant pleaded guilty to a charge of maliciously inflicting grievous bodily harm with intent in respect of a serious assault by him on his then…

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 [2008] NSWCCA 21
Case: [2008] NSWCCA 21
Decision Date: 22 February 2008

CaseChat Overview and Summary

In Kennedy v R, the applicant appealed against his sentence for the offence of maliciously inflicting grievous bodily harm with intent. The case was heard in the Supreme Court of New South Wales. The central issue was the characterisation of the offence as an "upper level" of objective seriousness and the relevance of the applicant's psychiatric status in this regard. The applicant, who suffers from schizophrenia, had failed to take his medication, and this was considered in determining the seriousness of the offence. The trial judge had not taken the mental disorder into account when assessing the objective seriousness.

The court examined whether the psychological status of the applicant was his own fault and whether the trial judge's failure to consider the mental disorder in assessing the objective seriousness of the offence warranted a new sentencing hearing. The court also considered the application of sections 21A, 54A, and 54B of the Crimes (Sentencing Procedure) Act 1999. Ultimately, the court found that the offence was properly characterised as mid-range of seriousness, and the sentence was not manifestly excessive. The applicant's appeal was dismissed.

The Supreme Court held that the trial judge had not erred in characterising the offence as mid-range of seriousness and that the applicant's psychiatric status did not warrant a reduction in sentence. The court found that the applicant's failure to take his medication was not his own fault and that the trial judge's failure to consider the mental disorder in assessing the objective seriousness did not necessitate a new sentencing hearing. The court further held that the sentence was not manifestly excessive, and the applicant's appeal was dismissed.

Orders