Kennedy v The Queen - [2018] NSWCCA 43

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kennedy v R [2018] NSWCCA 43
Hearing dates: 14 November 2017
Decision date: 28 March 2018
Before: Meagher JA at [1]
Rothman J at [2]
Button J at [7]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – offences of threatening injury to any person on account of something lawfully done by a person as a judicial officer – offence of conveying false information that a person or property is in danger – asserted error in assessing objective seriousness of offences – asserted failure to take into account appropriately applicant’s mental illness – asserted denial of procedural fairness – sentence asserted to be manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 93Q, 326
Crimes (Sentencing Procedure) Act 1999 (NSW), s21A
Cases Cited: Cowan v R [2015] NSWCCA 118
Linney v R [2013] NSWCCA 251
R v Engert (1995) 84 A Crim R 67
R v Jaques [2002] NSWCCA 444
R v Linney [2012] NSWSC 1564
Turner v R [2016] NSWCCA 44
Veen (No.2) [1988] HCA 14; (1988) 164 CLR 465
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Joshua Alexander Kennedy (Applicant)
Regina
Representation:
Counsel
I Nash (Applicant)
S Dowling SC (Crown)
Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/001841731
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

6 March 2017

Before:

Frearson SC DCJ

File Number(s):

2016/184173

JUDGMENT

MEAGHER JA: I agree with Button J.
ROTHMAN J: I agree with the orders proposed by Button J and generally with the reasons therefor.
During the course of submissions on appeal, it was suggested that the circumstance that the applicant did not communicate the threat directly to the judicial officer was an ameliorating factor. I do not accept that submission.
There are reasons for not accepting the submission. First, the applicant was, at least, reckless as to whether the judicial officer would be told.
Secondly, and more importantly, the communication of the threat to Corrective Services Officers, including information that there was an explosive device in the courthouse, necessarily involves the expectation that steps will be taken to sweep the courthouse by Police or bomb disposal experts. The proposition that an offender would notify authorities that a judicial officer would be killed, and the offender not expect that the judicial officer would be informed of the threat, beggars belief.
No evidence was adduced by the offender to overcome the necessary inference that he would expect the threat to be notified to the person threatened. Further, such a person would be aware of any search of the courthouse.
BUTTON J:

Introduction

Joshua Alexander Kennedy (the applicant) has sought leave to rely upon a number of grounds of appeal against sentence. They are as follows:

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 [2018] NSWCCA 43
Case: [2018] NSWCCA 43
Decision Date: 28 March 2018

CaseChat Overview and Summary

In the matter of Kennedy v The Queen, the appellant, Kennedy, appealed against the sentences imposed upon him following his convictions for various offences, including threatening injury to any person on account of something lawfully done by a judicial officer and conveying false information that a person or property was in danger. The appeal was heard and dismissed by the High Court of Australia. The primary focus of the appeal was on the severity of the sentence and the manner in which the trial judge had assessed the objective seriousness of the offences, particularly in light of Kennedy's mental health conditions. The appellant argued that the trial judge had erred in several respects, including by not adequately considering his mental illness and by denying him procedural fairness. Furthermore, Kennedy contended that the sentence imposed was manifestly excessive.

The court considered whether the trial judge had erred in the assessment of the objective seriousness of the offences and whether the sentence was manifestly excessive. The court found that the trial judge had carefully considered the relevant factors, including Kennedy's mental health, in determining the sentence. The court also held that the sentence was not manifestly excessive and that the trial judge had appropriately exercised his discretion. The court further determined that there had been no denial of procedural fairness and that the appeal was without merit.

Accordingly, the appeal was dismissed by the High Court of Australia. The court held that the trial judge had correctly assessed the objective seriousness of the offences and that the sentence imposed was appropriate. The court also found that Kennedy's mental illness had been appropriately taken into account and that there had been no denial of procedural fairness. The sentence imposed by the trial judge was upheld as correct and not manifestly excessive.

Orders