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 2008JUDGMENT 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 402PARTIES: 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
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CCA 2006/5246
22 February 2008BEAZLEY JA
JAMES J
KIRBY J
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…
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- AGLC
- Kennedy v R [2008] NSWCCA 21
- Case
- [2008] NSWCCA 21
- Decision Date
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.
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.
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