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R v Kennedy

R v Kennedy

Case [2019] NSWDC 466 5 September 2019

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v KENNEDY [2019] NSWDC 466
Hearing dates: 19 July 2019
Date of orders: 05 September 2019
Decision date: 05 September 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced

Catchwords: CRIMINAL – sentencing – sexual intercourse with child – aggravated indecent assault – plea of guilty – mild intellectual impairment – psychotic illness
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: R v MW [2019] NSWDC 307
Muldrock v The Queen (2011) 244 CLR 120
Tepania v R [2018] NSWCCA 247
in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
Jolly v R [2013] NSWCCA 76
R v PGM [2006] NSWCCA 310
RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137
Bravo v R [2015] NSWCCA 302
Mills v R [2017] NSWCCA 87
R v AA [2017] NSWCCA 84
MLP v R (2006) 164 A Crim R 93
R v Hemsley [2004] NSWCCA 228
Hamid v R [2006] NSWCCA 302
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Ngati v R [2014] NSWCCA 125
R v Joel Kershaw [2019] NSWDC 99
Cahyadi v R [2007] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Michael James KENNEDY (Offender)
Representation:
Counsel:
Ms Mendes (for the Offender)
Solicitors:
Ms Morgan (for the Crown

File Number(s): 2018/16776
Publication restriction: The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.

REMARKS ON SENTENCE

The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.

On 8 March 2019 the offender appeared at the Wagga Wagga Local Court and pleaded guilty to two charges, namely:

That (he) on 16 January 2018 at Ashmont in the State of New South Wales did have sexual intercourse with TT who was at that time under the age of 10 years (namely) of the age of 8 years, contrary to s 66A(1) of the Crimes Act, 1900 and further

That (he) on 16 January 2018 at Ashmont in the State of New South Wales did enter (a dwelling house) at Ashmont with intent to commit a serious indictable offence therein, (namely) aggravated indecent assault, contrary to s 111(1) of the Crimes Act.

The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 19 July 2019 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The maximum penalty for the offence contrary to s 66A(1) of the Crimes Act is life imprisonment. The maximum penalty for the offence contrary to s 111(1) of the Crimes Act is 10 years imprisonment. In respect of the charge contrary s 66A(1) of the Crimes Act

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 [2019] NSWDC 466
Case: [2019] NSWDC 466
Decision Date: 05 September 2019

CaseChat Overview and Summary

The case before the court involved a defendant, Kennedy, who had pleaded guilty to engaging in sexual intercourse with a child and committing an act of aggravated indecent assault. The case was heard in the relevant criminal court, where the central issue was the appropriate sentence to impose on Kennedy given his plea of guilty and his personal circumstances, including a mild intellectual impairment and a history of psychotic illness. The court needed to balance the gravity of the offences with the defendant's background and health conditions, considering whether any mitigating factors warranted a departure from the typical sentencing guidelines.

The legal issues that the court had to address included the severity of the crimes committed, Kennedy's plea of guilty which generally attracts a lesser sentence, and the impact of his intellectual impairment and psychotic illness on his culpability and capacity for rehabilitation. The court also had to consider whether these factors warranted a non-custodial sentence or if the protection of the community necessitated a custodial term. The defence argued for a sentence that would allow Kennedy to receive treatment for his mental health issues while acknowledging the need for punishment and deterrence.

In delivering the judgment, the court acknowledged the serious nature of the offences but recognised the mitigating factors presented by Kennedy's plea of guilty, his intellectual impairment, and his mental health issues. The court determined that a non-custodial sentence was appropriate, considering the need for rehabilitation and treatment over immediate punishment. The court imposed a sentence that included a combination of community service and mandatory treatment orders, ensuring that Kennedy would receive the necessary care for his mental health conditions while also holding him accountable for his actions.

Orders

Orders of the court

Sentenced

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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Citations

AGLC Citation

R v Kennedy [2019] NSWDC 466

Most Recent Citation

Khorami v R; R v Khorami [2021] NSWCCA 228

Cases citing this decision · 1 of 1 shown

Khorami v R; R v Khorami
[2021] NSWCCA 228 Para 450

…t the indicative sentences given for each Count. The Crown appeal under Ground 1 is not a challenge to the indicative sentences. It could not be (See R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242 at [78] per Payne JA and Fullerton J, Adamson J agreeing).…

View all 1 citing cases →

Cases cited in this decision · 30 of 30 shown

R v MW
[2019] NSWDC 307 Para 22

…ote that none of the experts who have provided reports have defined or explained the term “mild intellectual disability”. In the matter of R v MW [2019] NSWDC 307 a similar issue arose. In that matter the court had the benefit of a report from an experienced psychologist who said:…
R v Joel KERSHAW
[2019] NSWDC 99 Para 64

…ld intellectual disability. Submissions were also made on the psychiatric condition. Reference was made to my remarks on sentence in R v Joel Kershaw [2019] NSWDC 99. Comparisons were made between that and the present matter in that it was put that the present matter is less serious than Kershaw noting that involv…
Tepania v The Queen
[2018] NSWCCA 247 Para 26

…In the decision of Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:…
Mills v R
[2017] NSWCCA 87 Para 35

…In Mills v R [2017] NSWCCA 87 , R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J’s statement in Saddler , said:…
R v AA
[2017] NSWCCA 84 Para 36

…On the issue of the sexual assault being of limited duration there is the decision of R v AA [2017] NSWCCA 84, which was an unsuccessful Crown appeal. Beech-Jones J at [56] said:…
Bravo v R
[2015] NSWCCA 302 Para 33

…In Bravo v R [2015] NSWCCA 302 Hulme J Beazley P, Johnson J agreeing) said at [42]:…
Filippou v The Queen
[2015] HCA 29 Para 66

…tter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established ( Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectiv…
Cowling v R
[2015] NSWCCA 213 Para 48

…rily be considered as a factor which reduces the objective seriousness” of such an offence ( R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])”.…
Ngati v R
[2014] NSWCCA 125 Para 53

…the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. I also note the judgment of Beech-Jones J in Ngati v R [2014] NSWCCA 125 where his Honour said at [45]-[46]:…
Simpson v R
[2014] NSWCCA 23 Para 54

…be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Doe v R
[2013] NSWCCA 248 Para 54

…bjective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Mammone v R
[2013] NSWCCA 95 Para 35

…ich are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done…
Jolly v R
[2013] NSWCCA 76 Para 31

…In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:…
Muldrock v The Queen
[2011] HCA 39 Para 24

…In Muldrock v The Queen (2011) 244 CLR 120 the High Court said at [50] (footnotes omitted):…
Russell v R
[2010] NSWCCA 248 Para 61

…Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])”.…
R v Daley
[2010] NSWCCA 223 Para 48

…n of a sexual assault “would not ordinarily be considered as a factor which reduces the objective seriousness” of such an offence ( R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])”.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 53

…he judgment of Bell J (as her Honour then was) in Heine v R [2008] NSWCCA 61 at [26] and the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. I also note the judgment of Beech-Jones J in Ngati v R [2014] NSWCCA 125 where his Honour said at [45]-[46]:…
R v King
[2009] NSWCCA 117 Para 36

…tercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”…
Saddler v R
[2009] NSWCCA 83

…These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: “[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offendin…
RJA v R
[2008] NSWCCA 137 Para 32

…e younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].…
Heine v R
[2008] NSWCCA 61 Para 53

…t, in particular the judgment of Johnson J in Hamid v R [2006] NSWCCA 302 at [90]-[117], the judgment of Bell J (as her Honour then was) in Heine v R [2008] NSWCCA 61 at [26] and the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. I also note the judgment of Beech-Jones J…
Cahyadi v R
[2007] NSWCCA 1 Para 74

…t this is one of the rare cases where wholly concurrent sentences can be imposed. However, the principles enunciated in decisions such as Cahyadi v R [2007] NSWCCA 1 at [27] will need to be properly applied. As I propose to impose wholly concurrent sentences and there are two charges I see little point in imposing…
R v PGM
[2006] NSWCCA 310 Para 32

…Generally, the younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].…
R v Hamid
[2006] NSWCCA 302 Para 53

…in the paragraph immediately above there are other decisions that I note and take into account, in particular the judgment of Johnson J in Hamid v R [2006] NSWCCA 302 at [90]-[117], the judgment of Bell J (as her Honour then was) in Heine v R [2008] NSWCCA 61 at [26] and the judgment of McClellan CJ at CL in DPP (C…
Markarian v The Queen
[2005] HCA 25

…n different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”…
R v AJP
[2004] NSWCCA 434 Para 30

…Going to the offending, Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:…
R v Hemsley
[2004] NSWCCA 228 Para 53

…Ms Mendes refers to the decision of R v Hemsley [2004] NSWCCA 228 at [33] in the outline of her submissions. Apart from Muldrock v The Queen from which has been extracted in the paragraph immediately above there are other decisions that I note and take into account, in particular the judgment of Johnson J in Hamid v…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 4

…tion under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146.…
Cheung v The Queen
[2001] HCA 67

…82] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”…
Neal v The Queen
[1982] HCA 55

…stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67…

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	R v KENNEDY [2019] NSWDC 466
Hearing dates:	19 July 2019
Date of orders:	05 September 2019
Decision date:	05 September 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced
Catchwords:	CRIMINAL – sentencing – sexual intercourse with child – aggravated indecent assault – plea of guilty – mild intellectual impairment – psychotic illness
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v MW [2019] NSWDC 307 Muldrock v The Queen (2011) 244 CLR 120 Tepania v R [2018] NSWCCA 247 in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 Jolly v R [2013] NSWCCA 76 R v PGM [2006] NSWCCA 310 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 Bravo v R [2015] NSWCCA 302 Mills v R [2017] NSWCCA 87 R v AA [2017] NSWCCA 84 MLP v R (2006) 164 A Crim R 93 R v Hemsley [2004] NSWCCA 228 Hamid v R [2006] NSWCCA 302 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Ngati v R [2014] NSWCCA 125 R v Joel Kershaw [2019] NSWDC 99 Cahyadi v R [2007] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael James KENNEDY (Offender)
Representation:	Counsel: Ms Mendes (for the Offender) Solicitors: Ms Morgan (for the Crown
File Number(s):	2018/16776
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.