R v Kennedy - [2023] NSWDC 579

District Court

New South Wales

Medium Neutral Citation: R v Kennedy [2023] NSWDC 579
Hearing dates: 15 August 2023
Decision date: 18 August 2023
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted of each offence.
Special circumstances found – Bugmy factors; need for a longer period of supervision in the community to assist the offender to resolve his problems of drug addiction & institutionalisation.
Indicative sentences:
011- 9 months - with 6 months NPP
014 - 4 years - with 2 years &9 months NPP
015 - 3 years
Aggregate sentence:
Sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing on 16 August 2022 and expiring on 15 August 2025 and a balance of term of 2 years to commence on 16 August 2025 and to expire on 15 August 2027.

Catchwords:
CRIMINAL – sentence - possess or use a prohibited weapon without permit, a taser-type device - supply prohibited drug, more than commercial quantity - supply prohibited drug, more than an indictable quantity but less than a commercial quantity – role of offender as operator of drug supply syndicate and employer/supervisor of his associates – subjective matters

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985
Prevention of Cruelty to Animals Regulation 2012 - Reg 408
Weapons Prohibition Act 1998

Cases Cited:
Bugmy v The Queen [2013] CLR 571
Tran v R [2010] NSWCCA 183

Category: Sentence
Parties: Rex
Kennedy, Jesse
Representation: Counsel:
Defence: Ms S Carr
Solicitors:
ODPP: Ms L Shepherd
Defence: Ms J Panapa Macarthur Law Group

File Number(s): 2022/0098699

JUDGMENT

HIS HONOUR: Jesse Kennedy appears for sentence in respect of three offences. The first is possess or use a prohibited weapon without permit. being a taser-type device contrary to s 7(1) of the Weapons Prohibition Act 1998. The maximum penalty provided is 14 years and there is a standing non-parole period also provided of five years.
The second offence is supply prohibited drug, being more than commercial quantity, to wit,1,883 grams of 1,4-butanediol. The maximum penalty provided is 20 years’ imprisonment and/or 3,500 penalty units, and there is a relevant standard non-parole period of ten years.
The third offence is supply prohibited drug, being more than an indictable quantity but less than a commercial quantity. The drug involved was 15.75 grams of heroin. Contrary to s 25(1) of the Drugs Misuse and Trafficking Act, the maximum penalty provided is 15 years and/or 2,000 penalty units. There is no relevant standard non-parole period in respect of the third offence.
In each case, I will take into account the maximum penalty provided, and in the case of the first two offences, the relevant standard non-parole period as a guidepost when sentencing the offender.
The offender was committed for sentence on 9 March 2023 and has adhered to his plea in this court. He is accordingly entitled to a 25% discount in respect of each of the offences, and such a discount will…

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 R v Kennedy

Details

AGLC: R v Kennedy [2023] NSWDC 579
Case: [2023] NSWDC 579
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the case of R v Kennedy, the appellant faced multiple charges, including possession and use of a prohibited weapon without a permit, namely a taser-type device, as well as supply of prohibited drugs in quantities exceeding both indictable and commercial levels. The dispute reached the court, which was tasked with addressing the legal issues raised by the appellant’s conduct and the appropriate penalties to be imposed.

The court needed to determine the correct application of the law regarding the possession and use of prohibited weapons, specifically taser-type devices, as well as the sentencing for drug supply offences, taking into account the offender’s role within the syndicate. It was necessary to evaluate the impact of the appellant's position as the operator of the drug supply syndicate and his supervisory role over his associates. Furthermore, the court had to consider the Bugmy factors and the need for a longer period of supervision to assist the appellant with his drug addiction and institutionalisation issues.

Upon reviewing the evidence and arguments presented, the court found the appellant guilty of all charges. The court acknowledged the special circumstances surrounding the case, particularly the need for extended community supervision to help the appellant address his drug addiction and institutionalisation. After considering the indicative sentences for each offence and the Bugmy factors, the court determined that the appropriate aggregate sentence was a term of imprisonment of five years, with a non-parole period of three years. The sentence was to commence on 16 August 2022 and expire on 15 August 2025, with a balance of two years to be served thereafter.

Orders

Orders of the court

Convicted of each offence.

Special circumstances found – Bugmy factors; need for a longer period of supervision in the community to assist the offender to resolve his problems of drug addiction & institutionalisation.

Indicative sentences:

011- 9 months - with 6 months NPP

014 - 4 years - with 2 years & 9 months NPP

015 - 3 years

Aggregate sentence:

Sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing on 16 August 2022 and expiring on 15 August 2025 and a balance of term of 2 years to commence on 16 August 2025 and to expire on 15 August 2027.

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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Medium Neutral Citation:	R v Kennedy [2023] NSWDC 579
Hearing dates:	15 August 2023
Decision date:	18 August 2023
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted of each offence. Special circumstances found – Bugmy factors; need for a longer period of supervision in the community to assist the offender to resolve his problems of drug addiction & institutionalisation. Indicative sentences: 011- 9 months - with 6 months NPP 014 - 4 years - with 2 years &9 months NPP 015 - 3 years Aggregate sentence: Sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years commencing on 16 August 2022 and expiring on 15 August 2025 and a balance of term of 2 years to commence on 16 August 2025 and to expire on 15 August 2027.
Catchwords:	CRIMINAL – sentence - possess or use a prohibited weapon without permit, a taser-type device - supply prohibited drug, more than commercial quantity - supply prohibited drug, more than an indictable quantity but less than a commercial quantity – role of offender as operator of drug supply syndicate and employer/supervisor of his associates – subjective matters
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985 Prevention of Cruelty to Animals Regulation 2012 - Reg 408 Weapons Prohibition Act 1998
Cases Cited:	Bugmy v The Queen [2013] CLR 571 Tran v R [2010] NSWCCA 183
Category:	Sentence
Parties:	Rex Kennedy, Jesse
Representation:	Counsel: Defence: Ms S Carr Solicitors: ODPP: Ms L Shepherd Defence: Ms J Panapa Macarthur Law Group
File Number(s):	2022/0098699