Kennett v The King - [2023] VSCA 306

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0143

CHRIS KENNETT	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	8 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 306
JUDGMENT APPEALED FROM:	[2023] VCC 1254 (Judge Carlin)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Attempted armed robbery – Total effective sentence of 2 years and 8 months’ imprisonment with non-parole period of 22 months’ imprisonment – Whether judge erred in considering applicant’s cognitive functioning – No error – No reasonable prospect of reduction in sentence – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1).

Rule v The Queen [2022] VSCA 162, applied; R v Verdins (2007) 16 VR 269, Muldrock v The Queen (2011) 244 CLR 120, considered.

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Counsel for written submissions
Applicant:		Mr N Howard
Respondent:		Ms A Moran
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA:

On 19 June 2023 the applicant, Chris Kennett, pleaded guilty to one charge of attempted armed robbery. Following a plea hearing on 19 July and 20 July 2023, the applicant was sentenced in the County Court on 20 July 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted armed robbery[1]	20 years’ imprisonment	2 years and 8 months’ imprisonment	N/A
Total Effective Sentence:		2 years and 8 months’ imprisonment
Non-Parole Period:		1 year and 10 months
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		Total Effective Sentence 4 years Non Parole-Period 3 years
Other Relevant Orders: 1. Forfeiture order. 2. Destruction order.

[1]Contrary to Crimes Act 1958, ss 75A, 321M.

The applicant seeks leave to appeal against sentence on the following proposed ground:
Ground 1.The sentencing judge erred in considering the applicant’s cognitive functioning.
For the reasons that follow, leave to appeal will be refused.

Circumstances of offending[2]

[2]DPP v Kennett [2023] VSC 1254, [1]–[7], [10] (‘Sentencing Reasons’).

On 12 November 2021, at about 5:50 pm, a pharmacist was closing down his pharmacy and completing some paperwork. He was by himself and had closed the front roller shutter halfway down to stop customers from entering. The roller door was the only access in or out of the premises.
The pharmacist noticed the applicant enter the store and approach the counter. He told the applicant that the shop was closed. The applicant produced a plastic bag, placed it on the counter and told him, ‘Give me all your Valiums, temaz, benzos into this bag’. The applicant raised his arm and the pharmacist could see something that appeared to be metal protruding from the applicant’s right hand. The applicant said to him, ‘You better not call the police [and] I have a blade’.
The pharmacist activated a silent alarm under the desk…

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 Kennett v The King

Details

AGLC: Kennett v The King [2023] VSCA 306
Case: [2023] VSCA 306
Decision Date: 8 December 2023

CaseChat Overview and Summary

The applicant, Kennett, applied for leave to appeal against the sentence imposed by a single judge for attempted armed robbery. The sentence was 2 years and 8 months’ imprisonment, with a non-parole period of 22 months. The applicant argued that the judge erred in considering his cognitive functioning. The Court of Appeal considered whether there was a reasonable prospect of a reduction in sentence.

The Court of Appeal identified the key legal issue as whether the trial judge erred in considering the applicant's cognitive functioning. The Court noted that cognitive functioning is a relevant factor in sentencing, and the judge had not erred in taking it into account. The Court also examined whether there was a reasonable prospect of a reduction in sentence. The Court held that the sentence imposed was within the appropriate range and that there was no reasonable prospect of a reduction.

The Court of Appeal found no error in the judge's consideration of the applicant's cognitive functioning and no reasonable prospect of a reduction in sentence. The Court dismissed the application for leave to appeal. The Court relied on previous cases, including Rule v The Queen, R v Verdins, and Muldrock v The Queen, in reaching its decision. The Court concluded that the sentence imposed was appropriate and that there was no basis for an appeal.

The Court of Appeal dismissed the application for leave to appeal against the sentence. No further orders were made.

Orders