Kenny v R

Case [2010] NSWCCA 6


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Kenny v R [2010] NSWCCA 6
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2005/10987

HEARING DATE(S):
15/12/2009

JUDGMENT DATE:
12 February 2010

PARTIES:
John Nils Alexander Kenny v Regina

JUDGMENT OF:
Basten JA Howie J Johnson J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2005/11/0993

LOWER COURT JUDICIAL OFFICER:
Blackmore DCJ

LOWER COURT DATE OF DECISION:
13/02/2009

COUNSEL:
M M Cinque - Crown
S Odgers SC - Applicant

SOLICITORS:
S Kavanagh - Crown
Watsons Solicitors

CATCHWORDS:
CRIMINAL LAW - sentence - relevant factors - sexual intercourse with child under 16 - whether use of internet and planning of offence constitute aggravating factors - whether public opprobrium or loss of public standing constitute mitigating factors

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(f)
Crimes Act 1900 - ss 61M(1), 66C(3)

CATEGORY:
Principal judgment

CASES CITED:
Melbourne v The Queen [1999] HCA 32; 198 CLR 1
Ryan v The Queen [2001] HCA 21; 206 CLR 267
R v Jackson and Hakim (1988) 33 A Crim R 413
R v Hermann (1988) 37 A Crim R 440
R v Dagwell [2006] NSWCCA 98
R v Allpass (1993) 72 A Crim R 561
R v Cobb [1999] FCA 158; 84 FCR 450
R v Poynder [2007] NSWCCA 157; 171 A Crim R 544
R v King [2009] NSWCCA 117

TEXTS CITED:

DECISION:
Leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/10987

BASTEN JA
HOWIE J
JOHNSON J

FRIDAY 12 FEBRUARY 2010

John Nils Alexander KENNY v REGINA

Judgment

  1. BASTEN JA:  The applicant was sentenced by Blackmore DCJ on a count of having sexual intercourse with a girl under the age of 16 years to a term of imprisonment of two years, of which one year, three months constituted a non-parole period.  The circumstances of the offence, together with other matters taken into account in sentencing the applicant, are set out in the judgment of Howie J and need not be repeated.

  2. When the matter came before this Court on 15 December 2009, orders were made granting leave to appeal, but dismissing the appeal.  By way of further elucidation of the reasons given by Howie J (with which I agree) I would add the following comments in respect of each of the grounds of appeal.

    Use of internet; planning offence

  3. The first two grounds of appeal complained that the sentencing judge wrongly took into account as aggravating factors the use of the internet to establish contact and arrange for a meeting with the complainant and that there was a degree of planning of the offence.  To treat such factors as matters of aggravation was erroneous, it was submitted, because the applicant held an honest belief that the victim was not under 16 years of age.

  4. The factual basis for this complaint was uncertain.  The sentencing proceeded…

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Kenny v R [2010] NSWCCA 6
Case
[2010] NSWCCA 6
Decision Date

CaseChat Overview and Summary

The case of Kenny v R involved the appellant, Kenny, who was convicted of engaging in sexual intercourse with a child under the age of 16. The appeal was against the severity of the sentence imposed, with the primary focus on whether certain factors should be considered as aggravating or mitigating circumstances. The High Court of Australia was tasked with determining the appropriate weight to be given to various factors in sentencing, specifically whether the use of the internet and the planning of the offence were aggravating factors, and whether the public opprobrium or loss of public standing were mitigating factors.

The legal issues revolved around the principles of sentencing in criminal law, particularly the balance between aggravating and mitigating factors. The court had to consider whether the use of the internet and the planning involved in the offence warranted a harsher sentence due to their inherent seriousness. Additionally, the court needed to assess whether the consequences to the offender, such as public condemnation and loss of reputation, should be factored into the sentencing equation as mitigating elements.

The High Court, in its judgment, determined that the use of the internet and the meticulous planning of the offence were indeed significant aggravating factors, reflecting a premeditated and calculated approach by the offender. Conversely, the court held that public opprobrium and loss of standing, while impactful, were not to be considered as mitigating factors in the sentencing process. The court emphasised that these factors, while they might affect the offender, did not negate the gravity of the crime committed. Ultimately, the court upheld the sentence imposed, affirming the trial judge's discretion in weighing these factors.

In conclusion, the High Court's decision in Kenny v R underscored the importance of a balanced approach to sentencing, recognising the significance of both aggravating and mitigating factors, but also delineating clear boundaries for their application. The court's ruling clarified that while certain elements like the use of the internet and detailed planning could enhance the severity of the sentence, public reaction and loss of standing were not valid mitigating factors. This judgment provides guidance to lower courts in the assessment and application of sentencing principles in similar cases.

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