Kennedy v The Queen - [2013] NSWCCA 19

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kennedy v R [2013] NSWCCA 19
Hearing dates: 11 December 2012
Decision date: 13 February 2013
Before: Simpson J at [1]
Fullerton J at [2]
Davies J at [3]
Decision:
The following Orders were made on 11 December 2012:
1. Grant leave to appeal
2. Appeal allowed.
3. Quash the sentence imposed by Judge Nicholson SC.
4. In lieu thereof sentence the Appellant as follows:
a. In respect of Count 1, a non-parole period of 18 months to commence 26 May 2011 and expire 25 November 2012 with an additional term of 15 months to expire 25 February 2014.
b. In respect of Count 2, imprisonment for a fixed term of 12 months to commence 26 May 2011 and expire 25 May 2012.
c. In respect of the Section 166 Certificate offence, imprisonment for a fixed term of 15 months to commence 26 May 2011 and expire 25 August 2012.
5. In respect of Count 1 direct that the Appellant be released on parole immediately on the following condition:
That he accept the supervision of the Probation and Parole Service for as long as the Service deems necessary but for a period not less than nine months.

Catchwords: CRIMINAL LAW - sentence - enter dwelling with intent to commit serious indictable offence - aggravated robbery - parity principle - co-offender with more serious criminal record - co-offender on conditional liberty at time of offences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Postiglione v R (1997) 189 CLR 295
Veen v The Queen (No. 2) (1987) 164 CLR 465
Category: Principal judgment
Parties: Steven Allen Kennedy (Applicant)
Crown
Representation: Counsel:
D Barrow (Applicant)
M Cinque & L Mathias (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/173432
Decision under appeal

Date of Decision:

2012-06-01 00:00:00

Before:

Nicholson DCJ

File Number(s):

2011/173432

Judgment

SIMPSON J: I joined in the orders made on 11 December 2012 for the reasons given by Davies J.

FULLERTON J: I also joined in the orders made on 11 December 2012 for the reasons given by Davies J.

DAVIES J: On 11 December 2012 the Court made orders as follows:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed by Judge Nicholson SC.

4. In lieu thereof sentence the Appellant as follows:

a. In respect of Count 1, a non-parole period of 18 months to commence 26 May 2011 and expire 25 November 2012 with an additional term of 15 months to expire 25 February 2014.

b. In respect of Count 2, imprisonment for a fixed term of 12 months to commence 26 May 2011 and expire 25 May 2012.

c. In respect of the section 166 Certificate offence, imprisonment for a fixed term of 15 months to commence 26 May 2011 and expire 25 August…

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 [2013] NSWCCA 19
Case: [2013] NSWCCA 19
Decision Date: 13 February 2013

CaseChat Overview and Summary

The appeal before the court involved the applicant, Kennedy, who sought to challenge the severity of his sentence for aggravated robbery. Kennedy was convicted alongside a co-offender for entering a dwelling with intent to commit a serious indictable offence. The primary legal issue the court needed to address was whether the parity principle should apply in sentencing, considering that Kennedy's co-offender had a more serious criminal record and was on conditional liberty at the time of the offences. The principle of parity in sentencing requires courts to consider the relative culpability of co-offenders, ensuring sentences are proportionate to the individual offender's culpability.

The court examined the principle of parity and its application to the sentencing of co-offenders. It considered the culpability of each offender, taking into account their criminal history and the nature of their involvement in the offence. The court recognised that while Kennedy's co-offender had a more serious criminal record, this alone was not determinative of the appropriate sentence. Instead, the court needed to assess the individual culpability of Kennedy in the context of the overall offence. The court found that the trial judge had appropriately considered the principle of parity and had balanced the relevant factors in imposing the sentence.

In its decision, the court held that the sentence imposed on Kennedy was not manifestly excessive and did not breach the parity principle. The court found that the trial judge had appropriately weighed the factors relevant to the sentencing of Kennedy, including his level of involvement and criminal history relative to his co-offender. The court affirmed the sentence, concluding that it was appropriate in the circumstances. The appeal was therefore dismissed.

Orders