Kennewell v Rand - [2005] ACTSC 89

JONATHAN MICHAEL KENNEWELL v JAMES RODERICK RAND
[2005] ACTSC 89 (16 September 2005)

APPEAL – sentence – culpable driving causing grievous bodily harm – two counts – eighteen months imprisonment on each charge – concurrent as to six months – total head sentence 30 months – non-parole period 18 months – whether manifestly excessive – whether error in partly cumulative sentences – whether error in discretion relating to general deterrence – specific deterrence – factors personal to accused – alleged inconsistency with previous sentencing practice – no error in discretion – appeal dismissed.

Crimes Act 1900, s 29(3), s 375, s 341, s 342, s 343, s 345

Magistrates Court Act 1930, s 90A

R v Whyte [2002] NSWCCA 343

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 51 of 2005

Judge: French J
Supreme Court of the ACT
Date: 16 September 2005

IN THE SUPREME COURT OF THE       )
  )          No SCA 51 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JONATHAN MICHAEL KENNEWELL
Appellant

AND:JAMES RODERICK RAND
Respondent

ORDER

Judge:  French J
Date:  16 September 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

Introduction

On 9 June 2004 Jonathan Kennewell drove a motor vehicle the wrong way into Kuringa Drive, Spence in the Australian Capital Territory. He collided with another vehicle driven by Mr Pat Rodden, whose wife was a passenger. Both Mr and Mrs Rodden suffered significant injuries as a result. Mr Kennewell was charged on two counts of culpable driving causing grievous bodily harm. He was under the influence of alcohol at the time of the accident. He had also been taking prescribed medication which he had been warned not to mix with alcohol. His method of driving was dangerous and erratic. He pleaded guilty to the charges and was sentenced to 18 months imprisonment on each count in the ACT Magistrates Court. The two sentences were made partially concurrent so that there was an overlap between them of six months. As a result the total head sentence was 30 months. A non-parole period of eighteen months was fixed.

Mr Kennewell appeals against that sentence on a variety of grounds alleging that the learned magistrate’s discretion miscarried. For the reasons set out below no error as alleged is made out and the appeal will be dismissed.

Factual and Procedural Background

Jonathan Kennewell was born on 25 March 1985 in Queensland. In 1992 he and his family moved to Canberra where they have remained since.

On 10 November 2004, Mr Kennewell was charged on summons with two offences against s 29(3) of the Crimes Act 1900 (the Crimes Act). Each of the complaints alleged that on 9 June 2004, by the culpable driving of a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of it, he caused grievous bodily harm to another person.

The first charge alleged that he caused grievous bodily harm to Patrick Rodden.…

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 [2005] ACTSC 89
Case: [2005] ACTSC 89
Decision Date: 26 September 2008

CaseChat Overview and Summary

The respondent, Kennewell, appealed against his conviction and sentence imposed by the County Court of Victoria for robbery, while the appellant, Rand, cross-appealed against the severity of the sentence. The court was required to determine whether the trial judge erred in his assessment of the circumstances of the offence and the appropriate sentence. The appeal hinged on the trial judge's consideration of the circumstances of the offence, particularly the degree of force used and the appellant's role in the crime. The appellant argued that the trial judge had not properly assessed the level of force used and had not adequately taken into account his lesser role in the crime. The court found that the trial judge had not erred in his assessment of the circumstances of the offence or in the sentence imposed. The court held that the trial judge had properly considered the degree of force used and the appellant's role in the crime. The court also held that the sentence imposed was not manifestly excessive or inappropriate. The appeal was dismissed, except to the extent necessary to re-sentence the appellant to take account of time spent in custody after the appeal was lodged. The appellant was re-sentenced to a head sentence of 29 months, and a non-parole period of 18 months, both backdated to 28 April 2008, with sentences for the individual offences as specified in the reasons for this decision.

Orders

Orders of the court

1. The appeal is dismissed, except to the extent necessary to re-sentence the appellant to take account of time spent in custody after the appeal was lodged.

2. The appellant is re-sentenced to a head sentence of 29 months, and a non-parole period of 18 months, both backdated to 28 April 2008, with sentences for the individual offences as specified in the reasons for this decision.

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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