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), s21ACases 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 460Category: Principal judgment Parties: Joshua Alexander Kennedy (Applicant)
ReginaRepresentation: Counsel
Solicitors:
I Nash (Applicant)
S Dowling SC (Crown)
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
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MEAGHER JA: I agree with Button J.
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ROTHMAN J: I agree with the orders proposed by Button J and generally with the reasons therefor.
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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.
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There are reasons for not accepting the submission. First, the applicant was, at least, reckless as to whether the judicial officer would be told.
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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.
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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.
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BUTTON J:
Introduction
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Joshua Alexander Kennedy (the applicant) has sought leave to rely upon a number of grounds of appeal against sentence. They are as follows:
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- AGLC
- Kennedy v The Queen [2018] NSWCCA 43
- Case
- [2018] NSWCCA 43
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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