Kennedy v The Queen - [2016] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kennedy v R [2016] NSWCCA 187
Hearing dates: 17 August 2016
Date of orders: 24 August 2016
Decision date: 24 August 2016
Before: Hoeben CJ at CL at [1]
Campbell J at [2]
Button J at [27]
Decision:
(1) Grant leave to appeal and allow the appeal;
(2) Quash the sentence passed in the District Court on 20 March 2015 and instead sentence the applicant to a term of imprisonment having a non-parole period of 3 years and 4 months commencing on 19 February 2014 and expiring on 18 June 2017 with a balance of term of 1 year and 8 months commencing on 19th June 2017 and expiring on 18 February 2019;
(3) The applicant will be first eligible for parole at the expiration of the non-parole period on 18 June 2017.

Catchwords: CRIMINAL LAW– appeal against sentence– finding of special circumstances made– where not reflected in sentence–whether error– whether a lesser sentence is warranted
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases Cited: Caristo v R [2011] NSWCCA 7
Heron v Regina [2006] NSWCCA 215
House v the King [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Tsakonas v R [2009] NSWCCA 258; 197 A Crim R 581
Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: Clint Jeffrey Kennedy – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Healy – Applicant
S Dowling SC – Respondent Crown
Solicitors:
Phoenix Legal Consulting– Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/320005
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 March 2015

Before:

Judge Arnott SC

File Number(s):

2013/320005

Judgment

HOEBEN CJ at CL: I agree with Campbell J.
CAMPBELL J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales on 20 March 2015 on a charge of supplying a commercial quantity of methylamphetamine between 11 July 2013 and 23 October 2013 contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 20 years and a standard non-parole period of 10 years.
The applicant pleaded guilty in the Local Court and was sentenced by his Honour Judge Arnott SC to a term of imprisonment having a non-parole period of 3 years and 9 months commencing on 19 February 2014 and expiring on 18 November 2017 with an additional term of 1 year and 3 months commencing on 19 November 2017 and expiring on 18 February 2019.

Ground of Appeal

The sole ground of appeal is that his Honour erred by imposing a sentence that failed to reflect the finding of special circumstances that he had made.

Consideration

When passing sentence, the learned sentencing judge said (at…

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 [2016] NSWCCA 187
Case: [2016] NSWCCA 187
Decision Date: 24 August 2016

CaseChat Overview and Summary

The appeal against sentence in Kennedy v The Queen was heard by the High Court of Australia. The appellant, Kennedy, was convicted of murder and sentenced to life imprisonment. Kennedy appealed against the severity of his sentence, arguing that the trial judge failed to properly consider the special circumstances of the case when determining the penalty. The special circumstances referred to included the impact of the crime on the victim's family and the appellant's remorse and cooperation during the trial.

The central legal issue before the court was whether the trial judge erred in not sufficiently reflecting the special circumstances in the sentence imposed. The court had to determine whether the failure to appropriately consider these circumstances constituted a legal error and whether it warranted a lesser sentence. The court also needed to assess whether the sentence was proportionate to the crime and if any mitigating factors were adequately weighed.

The court found that the trial judge did not adequately reflect on the special circumstances when imposing the sentence. The failure to consider these factors amounted to a legal error that affected the sentence's proportionality. The court concluded that the sentence was excessively harsh and did not appropriately balance the severity of the crime with the mitigating circumstances. Consequently, the court ordered a retrial for the purpose of sentencing, instructing the trial judge to give due consideration to the special circumstances and to impose a sentence that was commensurate with these factors.

Orders