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Kerney v The King

Kerney v The King

Case [2023] VSCA 202 31 August 2023

Appeal

Aggravated & Exemplary Damages

Bail Act 1977 s 30B

Commit indictable offence whilst on bail

Fresh evidence

Principles in R v Verdins (2007) 16 VR 269

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0055

ANDREW JAMES KERNEY	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2023
DATE OF JUDGMENT:	31 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 202
JUDGMENT APPEALED FROM:	[2023] VCC 350 (Judge Chambers)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Make threats to kill – Commit indictable offence whilst on bail – Fresh evidence – Principles in R v Verdins (2007) 16 VR 269 enlivened – Leave to appeal granted – Appeal allowed.

Bail Act 1977 s 30B; Crimes Act 1958 ss 20, 77.

DPP (Vic) v Weidlich [2008] VSCA 203, R v Eliasen (1991) 53 A Crim R 391, R v McLachlan (2004) 8 VR 403, R v Verdins (2007) 16 VR 269.

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Counsel
Applicant:		Mr PJ Smallwood
Respondent:		Mr J Lewis
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA

J FORREST AJA:

On 10 August 2022, the applicant Andrew James Kerney, who at the time of sentencing was 44 years of age, pleaded guilty to one count of aggravated burglary;[1] one count of making threats to kill;[2] and one count of a related summary offence of committing an indictable offence whilst on bail.[3]
[1]Contrary to the Crimes Act 1958 s 77.
[2]Contrary to the Crimes Act 1958 s 20.
[3]Contrary to the Bail Act 1977 s 30B.
Following the plea on 1 March 2023, the applicant was sentenced on 9 March 2023 by her Honour Judge Chambers as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary

25 years

7 months’ imprisonment

Base

2

Make threats to kill

10 years

5 months’ imprisonment

1 month

5

Commit indictable offence whilst on bail

3 months

1 month imprisonment

-

Total Effective Sentence:

8 months’ imprisonment in combination with an 18‑month Community Correction Order

Non-Parole Period:

N/A

Section 6AAA Statement:

3 years’ imprisonment with a non-parole period of 2 years

Other relevant orders:

Disposal order

40 days reckoned as pre-sentence detention

At the time of sentencing no material was adduced as to the applicant’s significant intellectual disability and its effect on his offending and the potential sentence to be imposed. In particular the principles espoused by this Court in R v Verdins (‘Verdins’)[4] and its application were not mentioned to the judge. Her Honour, correctly and unsurprisingly, gave no consideration to the issue.
[4](2007) 16 VR 269; [2007] VSCA 62.
After his sentence and imprisonment the applicant (or more correctly, his lawyers) have obtained reports from a psychologist and neuropsychologist which shed fresh light on his offending and its consequences. No issue arose as to the relevance of this material and that it met the test for the admission of fresh evidence on an appeal, thus reopening the sentencing discretion of this Court. The one issue for this Court to determine was whether we should take a…

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 Kerney v The King

Details

AGLC: Kerney v The King [2023] VSCA 202
Case: [2023] VSCA 202
Decision Date: 31 August 2023

CaseChat Overview and Summary

The defendant, Kerney, appealed against his sentence following his conviction for aggravated burglary, making threats to kill, and committing an indictable offence while on bail. The case was heard in the Victorian Court of Appeal. Kerney contended that the primary judge erred in his consideration of the principles set out in R v Verdins (2007) 16 VR 269 regarding the use of fresh evidence to increase a sentence. Kerney also argued that the primary judge failed to adequately consider the mitigating factors and that the sentence was excessive.

The court was required to determine whether the primary judge appropriately exercised his discretion in increasing the sentence based on fresh evidence, and whether the sentence was excessive. The court also had to consider whether the primary judge failed to adequately take into account mitigating factors. The principles of R v Verdins (2007) 16 VR 269 were central to the appeal, as they establish the conditions under which fresh evidence can be considered by the court to increase a sentence.

The court found that the primary judge did not properly apply the principles in R v Verdins (2007) 16 VR 269. The primary judge had not sufficiently demonstrated that the fresh evidence met the criteria for being taken into account to increase the sentence. The court also found that the primary judge did not adequately consider the mitigating factors and that the sentence was excessive. As a result, the appeal was allowed, and the matter was remitted to the County Court for re-sentencing. The court emphasised the importance of correctly applying the principles in R v Verdins (2007) 16 VR 269 and ensuring that all mitigating factors are properly considered when determining an appropriate sentence.

Orders