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Kennedy v The Queen

Kennedy v The Queen

Case [2019] VSCA 127 5 June 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0154

PHILIP KENNEDY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2019
DATE OF JUDGMENT:	5 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 127
JUDGMENT APPEALED FROM:	DPP v Kennedy (Unreported, County Court of Victoria, Judge McInerney, 9 July 2018)

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CRIMINAL LAW — Sentencing — Cultivation of a narcotic plant — Theft — Trafficking a drug of dependence — Plea of guilty — Applicant sentenced to a total effective sentence of five years with a non-parole period of three years — Whether sentencing judge failed to give appropriate weight to impact of admissions made by the applicant — Whether sentencing judge erred in applying the principles in Nguyen v The Queen [2016] VSCA 198 — Whether sentences manifestly excessive — Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P J Smallwood	Melasecca, Kelly & Zayler
For the Respondent:	Mr P L Bourke	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

KAYE JA:

The applicant pleaded guilty, in the County Court, to one charge each of cultivation of a narcotic plant (cannabis L), theft and trafficking a drug of dependence. He also pleaded guilty to a related summary charge of dealing with property suspected of being the proceeds of crime. He was sentenced to a total effective term of five years’ imprisonment, with a non-parole period of three years.[1] That sentence was constituted as follows:
[1]DPP v Kennedy (Unreported, County Court of Victoria, Judge McInerney, 9 July 2018) (‘Reasons’).

Charge Offence Maximum Sentence

1. Cultivate Narcotic Plant [s72B Drugs Poisons and Controlled Substances Act 1981] 15 years 4 years (base sentence)

2. Theft [s 74 Crimes Act 1958] 10 years 1 year (6 months cumulative)

3. Traffick a Drug of Dependence [71AC Drugs, Poisons, Controlled Substances Act 1981] 15 years 1 year (6 months cumulative)

Summary Charge 1 Deal with property suspected of being proceeds of crime [s 195 Crimes Act 1958] 2 years 6 months

Total Effective Sentence: 5 years with a non-parole period of 3 years

Pre-Sentence detention declared: 38 days

6AAA Statement: 6 years 6 months with a non-parole period of 4 years

Other Orders: Forfeiture, Disposal and Compensation Orders made

The applicant seeks leave to appeal on the following three grounds:

Ground 1—       The learned Sentencing Judge failed to given (sic) appropriate weight to the impact of the wide-ranging admissions made by the Applicant.
Ground 2—       The learned Sentencing Judge erred in finding that the principles outlined in Nguyen v The Queen [2016] VSCA 198 had application in this matter.
Ground 3—       The individual sentences imposed, total effective sentence and non-parole period were, in all of the circumstances of this case, manifestly excessive.

Circumstances of offending

The applicant was alleged to have committed the offence contained in the first charge on the indictment, cultivation of a narcotic plant, between 26 September 2015…

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 The Queen

Details

AGLC: Kennedy v The Queen [2019] VSCA 127
Case: [2019] VSCA 127
Decision Date: 5 June 2019

CaseChat Overview and Summary

Kennedy was before the court as the appellant and the Crown was the respondent. Kennedy had pleaded guilty to cultivating a narcotic plant, stealing, and trafficking a drug of dependence. The Supreme Court of Victoria heard the case. The primary legal issue before the court was whether the sentencing judge had appropriately considered the impact of Kennedy's admissions on the sentence imposed. Another issue was whether the sentencing judge had correctly applied the principles established in Nguyen v The Queen [2016] VSCA 198. Lastly, the court considered if the sentences were manifestly excessive.

The court held that the sentencing judge had given appropriate weight to the admissions made by Kennedy, as evidenced by the judge's reasons for sentence. The court also found that the sentencing judge had correctly applied the principles from Nguyen, which emphasise the importance of totality in sentencing and the need to avoid excessive cumulative sentences. The court further held that the sentences were not manifestly excessive, taking into account the seriousness of the offences and the need to deter others from engaging in similar criminal conduct. Consequently, the application for leave to appeal against the sentence was refused.

Orders