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Kennewell v Rand

Kennewell v Rand

Case [2006] ACTCA 10 5 June 2006

Statutory Interpretation

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JONATHAN MICHAEL KENNEWELL v JAMES RODERICK RAND
[2006] ACTCA 10 (5 JUNE 2006)

CRIMINAL LAW – sentencing – appeal from decision of Judge of this Court not to grant appeal from Magistrate’s decision – whether sentences for two offences arising from same set of circumstances should be cumulative or concurrent – Magistrate erred – sentences should be concurrent – appeal allowed.

Crimes Act 1900 (ACT), s 29(3), s 341, s 342, s 345

Magistrates Court Act 1930, s 90A

R v Slattery (1996) 90 A Crim R 519 applied
R v Leach (2003) 85 SASR 139 applied

Attorney-General v Tichy (1982) 30 SASR 84 applied
R v Carey and Adey (1975) 11 SASR 575 cited
R v Wilkins (1988) 38 A Crim R 445 cited
Pearce v The Queen (1998) 194 CLR 610 cited

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 44-2005
No. SCA 51 of 2005
Judges: Gray, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 5 June 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 44-2005
  )          No. SCA 51 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JONATHAN MICHAEL KENNEWELL
Appellant

AND:JAMES RODERICK RAND
Respondent

ORDER

Judges:  Gray, Connolly and Lander JJ
Date:  5 June 2006
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The sentences of 18 months imprisonment imposed by Ms Campbell SM on 24 June 2005 on each of the two convictions be served concurrently.

The non-parole period be fixed at 12 months commencing on 24 June 2005 and ending on 23 June 2006.

The order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 5 years made by Ms Campbell SM on 24 June 2005 stand.

IN THE SUPREME COURT OF THE       )          No. ACTCA 44-2005
  )          No. SCA 51 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JONATHAN MICHAEL KENNEWELL
Appellant

AND:JAMES RODERICK RAND
Respondent

Judges:  Gray, Connolly and Lander JJ
Date:  5 June 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 24 June 2005 the appellant pleaded guilty in the Magistrates Court in the Australian Capital Territory (the ACT) to two counts of causing grievous bodily harm to a person by the culpable driving of his motor vehicle, contrary to s 29(3) (as it was then) of the Crimes Act 1900 (ACT) (the Act). Both counts arose out of the one driving incident. In both offences it was a particular of the charge that the appellant drove his motor vehicle ‘while under the influence of alcohol to such an extent as to be incapable of having proper control’. The offences occurred at 1.40pm on 9 June 2004. The appellant was convicted of both counts. He was…

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 Kennewell v Rand

Details

AGLC: Kennewell v Rand [2006] ACTCA 10
Case: [2006] ACTCA 10
Decision Date

CaseChat Overview and Summary

Jonathan Michael Kennewell appealed to the Court of Appeal of the Australian Capital Territory against a decision of a Judge of the Supreme Court of the Australian Capital Territory, which had dismissed his appeal against sentences imposed by a Magistrate. The appellant had pleaded guilty to two counts of causing grievous bodily harm by culpable driving, both arising from a single incident where he drove under the influence of alcohol. The Magistrate had sentenced him to 18 months imprisonment for each offence, with 12 months of the second sentence to be served cumulatively, resulting in a total head sentence of 30 months, and a non-parole period of 18 months.

The central legal issue before the Court of Appeal was whether the Magistrate had erred in imposing cumulative sentences for two offences stemming from the same set of circumstances, and whether the overall sentence was manifestly excessive. The appellant also argued that insufficient weight had been given to his personal circumstances, including his age, good character, mental health issues, remorse, and early plea of guilty, and that the sentences did not accord with current sentencing practices or principles of parity.

The Court of Appeal allowed the appeal, finding that the Magistrate had erred in making part of the sentence cumulative. Applying the principles established in cases such as *R v Slattery* and *R v Leach*, the Court held that where two offences arise from the same incident, sentences should generally be concurrent unless there are specific reasons to make them cumulative. The Court reasoned that the appellant's conduct, while serious, did not warrant the imposition of cumulative sentences in these circumstances. The Court also considered the appellant's subjective factors, including his youth, lack of prior convictions, remorse, and mental health issues, in determining the appropriate sentence.

The Court ordered that the sentences of 18 months imprisonment for each of the two convictions be served concurrently. The non-parole period was fixed at 12 months, commencing from the date of the original sentence. The disqualification from holding or obtaining a driver's licence for five years was upheld.

Orders