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