Kennewell v Rand

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.