Medium Neutral Citation: R v Kennedy [2019] NSWDC 359
Hearing dates: 31 May 2019,19 July 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction: Criminal
Before: Weber SC DCJ
Decision:
1. The offender is convicted on each of the counts set forth in the Indictments.

2. The offender is sentenced to a term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months.
3. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 31 May 2019, and that the non-parole period shall expire on 30 August 2024, with the balance of the sentence to expire on 30 May 2026.
Catchwords:
SENTENCING – Fraud – dishonestly obtain financial advantage by deception – false representations that the offender would invest victims’ monies – false representations that tax was payable by victim to the ATO – multiple guilty pleas and form 1 matter

SENTENCING – Aggravating factors – considerable criminal record including for similar offences – substantial loss to victims of $4,693,621.50 – abuse of position of trust – multiple victims – series of criminal acts – certain involving degree of planning and sophistication
SENTENCING – Other matters – upper range of objective seriousness – 8 year period of offending – low prospects of rehabilitation – high risk of reoffending – no special circumstances – offender of advanced age - some accumulation appropriate – concurrence and totality appropriate – aggregate sentence imposed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Azzopardi v The Queen [2011] VSCA 372
Baumer v The Queen (1988) 166 CLR 51
Elyard v Regina [2006] NSWCCA 43
Jeffree v Regina [2017] NSWCCA 72
Markarian v R (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v El-Rashid (unrep, 7/4/95, NSWCCA)
R v Finnie [2002] NSWCCA 533
R v Halabi (unrep, 17 February 1992, NSWCCA)
R v Harris (2007) 171 A Crim R 267
R v Hawkins (1989) 45 A Crim R 430
R v Mille (unrep, 1/5/98, NSWCCA)
R v Mungomery (2004) 151 A Crim R 376
R v Murtaza [2001] NSWCCA 336
R v Pont (2000) 121 A Crim R 302
R v Sellen (unrep, 5/12/91, NSWCCA)
R v Todorovic [2008] NSWCCA 49
R v Wilson [2005] NSWCCA 219
R v Woodman [2001] NSWCCA 310
R v XX (2009) 195 A Crim R 38
R v Yildiz (2006) 160 A Crim R 218
Regina v Tadrosse (2005) 65 NSWLR 740
Sivell v Regina [2009] NSWCCA 286
Stephens v R [2009] NSWCCA 260
Veen v The Queen (No. 2) (1988) 164 CLR 465
Weininger v The Queen (2003) 212 CLR 629
Category: Sentence
Parties: Regina (Crown)
Ian Kennedy (Offender)
Representation:
Counsel:
Mr M. Barr (Crown)
Mr P. Swaine (Offender)
Solicitors:
Ms R. Martin (ODPP)
Mr S. Young (Offender)

File…

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 359
Case: [2019] NSWDC 359
Decision Date: 19 July 2019

CaseChat Overview and Summary

In the matter of R v Kennedy, the offender was sentenced by the NSW Supreme Court for a series of fraudulent activities involving multiple victims. The court heard that the offender had dishonestly obtained a substantial financial advantage by making false representations about investing victims' monies and about the payment of taxes to the Australian Taxation Office. Kennedy pleaded guilty to numerous charges, and the matter was considered under the form 1 process, which allows for the expeditious dealing with of cases involving multiple guilty pleas.

The court was required to address various legal issues, including the objective seriousness of the offending, the aggravating factors present in the case, and the appropriate sentence to impose considering the totality of the circumstances. The offender had a considerable criminal record, including previous convictions for similar offences, and the losses suffered by the victims totalled $4,693,621.50. The court considered the offender's abuse of a position of trust, the number of victims, and the degree of planning and sophistication involved in the offending. The offender's advanced age and low prospects of rehabilitation were also taken into account.

The court determined that the case fell within the upper range of objective seriousness due to the substantial loss, the multiple victims, and the degree of planning. The 8-year period of offending and the high risk of reoffending further aggravated the sentence. No special circumstances were present that would warrant a lesser sentence. The court concluded that some accumulation of sentence was appropriate, and that a concurrence and totality approach was warranted. The offender was sentenced to a term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months, to commence on 31 May 2019, with the balance of the sentence to expire on 30 May 2026.

Orders

Orders of the court

1. The offender is convicted on each of the counts set forth in the Indictments.

2. The offender is sentenced to a term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months.

3. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 31 May 2019, and that the non-parole period shall expire on 30 August 2024, with the balance of the sentence to expire on 30 May 2026.

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 359

Most Recent Citation

McLaren v R [2021] NSWCCA 12

Cases citing this decision · 1 of 1 shown

McLaren v R
[2021] NSWCCA 12

…A 26 R v Albert [2019] NSWDC 869 R v Burke [2002] NSWCCA 353 R v Clarke [2019] NSWDC 2 R v Dimitri De Angelis [2013] NSWDC 79 R v Kennedy [2019] NSWDC 359 R v Nykolyn [2012] NSWCCA 219 SHR v R [2014] NSWCCA 94; (2014) 241 A Crim R 544 Siwek v R [2017] NSWCCA 178 Strbak v The Queen [2020] HCA 10; (2020) 280 A Crim R…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Jeffree v R
[2017] NSWCCA 72 Para 79

…In respect to the imposition of an aggregate sentence pursuant to section 53A of the Sentencing Act , Beazley P in Jeffree v Regina [2017] NSWCCA 72 stated at [43] that “when a court determines an aggregate sentence, the sentence so imposed must reflect the totality of the criminality involved.” Her Honour cited R…
Azzopardi v The Queen
[2011] VSCA 372 Para 78

…verall sentence is a sentence that satisfies all sentencing objectives applicable to the entirety of the criminal conduct ( Azzopardi v The Queen [2011] VSCA 372).…
Sivell v R
[2009] NSWCCA 286 Para 28

…nt, involves the Court considering all relevant matters, both objective and subjective, which inform the seriousness of the offence ( Sivell v Regina [2009] NSWCCA 286 at [5], per McClellan CJ at CL).…
Stevens v R
[2009] NSWCCA 260 Para 5

…ophistication ( R v Mille (unrep, 1/5/98, NSWCCA), R v Pont (2000) 121 A Crim R 302 at [43]-[44], R v Murtaza [2001] NSWCCA 336 at [15], Stephens v R [2009] NSWCCA 260 at [59], [78]); and…
R v Todorovic
[2008] NSWCCA 49 Para 2

…whether the loss is irretrievable ( R v Todorovic [2008] NSWCCA 49 at [19]);…
Elyard v R
[2006] NSWCCA 43 Para 43

…The offender drew my attention to the decision of Elyard v Regina [2006] NSWCCA 43, where the Court stated at [17] that:…
R v Wilson
[2005] NSWCCA 219 Para 76

…of accumulation are discretionary and the Court is to consider whether the total sentence reflects the total criminality of the offences ( R v Wilson [2005] NSWCCA 219 at [38]). As stated in R v XX (2009) 195 A Crim R 38 at [52]:…
Markarian v The Queen
[2005] HCA 25 Para 29

…McHugh J described the process involved as “instinctive synthesis”, which His Honour went on to explain in the following terms in Markarian v R (2005) 228 CLR 357, at [51]:…
R v Tadrosse
[2005] NSWCCA 145 Para 59

…the offender, as they were ordinary members of the public. It drew my attention to the decision of the Court of Criminal Appeal in Regina v Tadrosse (2005) 65 NSWLR 740 at [26] - [27], where Hall J (with whom Grove and Howie JJ agreed) stated:…
Weininger v The Queen
[2003] HCA 14 Para 54

…e previous convictions of the offender was a relevant factor to be taken into account, and drew my attention to the decision of Weininger v The Queen (2003) 212 CLR 629 at [32], where Gleeson CJ, McHugh, Gummow and Hayne JJ stated:…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 5

…unt in relation to count 2 in accordance with the principles set forth in the Attorney General’s Application under section 37 of the Sentencing Act (2002) 56 NSWLR 146. In so doing, I have increased the sentence which I otherwise would have imposed for count 2, to reflect the community’s entitlement to retribution and…
R v Finnie
[2002] NSWCCA 533 Para 1

…ount of money involved ( R v Hawkins (1989) 45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]);…
R v Murtaza
[2001] NSWCCA 336 Para 5

…the degree of planning and sophistication ( R v Mille (unrep, 1/5/98, NSWCCA), R v Pont (2000) 121 A Crim R 302 at [43]-[44], R v Murtaza [2001] NSWCCA 336 at [15], Stephens v R [2009] NSWCCA 260 at [59], [78]); and…
R v Woodman
[2001] NSWCCA 310 Para 1

…the amount of money involved ( R v Hawkins (1989) 45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]);…
Pearce v The Queen
[1998] HCA 57 Para 75

…In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said at [45] that:…
Mill v The Queen
[1988] HCA 70 Para 79

…ndorsed D A Thomas’ leading statement of the effect of the totality principle, which in turn was endorsed by the High Court in Mill v The Queen (1988) 166 CLR 59, where Wilson, Deane, Dawson, Toohey and Gaudron JJ said at 63:…
Baumer v R
[1988] HCA 67 Para 21

…g repealed offence “requires some adjustment to the range of sentences that would formerly have been considered appropriate” ( Baumer v The Queen (1988) 166 CLR 51 at 57).…
Veen v The Queen (No 2)
[1988] HCA 14 Para 53

…se indicates that it is appropriate to give more weight to such factors as retribution, deterrence or community protection ( Veen v The Queen (No. 2) (1988) 164 CLR 465, at 476.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Kennedy [2019] NSWDC 359
Hearing dates:	31 May 2019,19 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Criminal
Before:	Weber SC DCJ
Decision:	1. The offender is convicted on each of the counts set forth in the Indictments. 2. The offender is sentenced to a term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months. 3. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 31 May 2019, and that the non-parole period shall expire on 30 August 2024, with the balance of the sentence to expire on 30 May 2026.
Catchwords:	SENTENCING – Fraud – dishonestly obtain financial advantage by deception – false representations that the offender would invest victims’ monies – false representations that tax was payable by victim to the ATO – multiple guilty pleas and form 1 matter SENTENCING – Aggravating factors – considerable criminal record including for similar offences – substantial loss to victims of $4,693,621.50 – abuse of position of trust – multiple victims – series of criminal acts – certain involving degree of planning and sophistication SENTENCING – Other matters – upper range of objective seriousness – 8 year period of offending – low prospects of rehabilitation – high risk of reoffending – no special circumstances – offender of advanced age - some accumulation appropriate – concurrence and totality appropriate – aggregate sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Azzopardi v The Queen [2011] VSCA 372 Baumer v The Queen (1988) 166 CLR 51 Elyard v Regina [2006] NSWCCA 43 Jeffree v Regina [2017] NSWCCA 72 Markarian v R (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v El-Rashid (unrep, 7/4/95, NSWCCA) R v Finnie [2002] NSWCCA 533 R v Halabi (unrep, 17 February 1992, NSWCCA) R v Harris (2007) 171 A Crim R 267 R v Hawkins (1989) 45 A Crim R 430 R v Mille (unrep, 1/5/98, NSWCCA) R v Mungomery (2004) 151 A Crim R 376 R v Murtaza [2001] NSWCCA 336 R v Pont (2000) 121 A Crim R 302 R v Sellen (unrep, 5/12/91, NSWCCA) R v Todorovic [2008] NSWCCA 49 R v Wilson [2005] NSWCCA 219 R v Woodman [2001] NSWCCA 310 R v XX (2009) 195 A Crim R 38 R v Yildiz (2006) 160 A Crim R 218 Regina v Tadrosse (2005) 65 NSWLR 740 Sivell v Regina [2009] NSWCCA 286 Stephens v R [2009] NSWCCA 260 Veen v The Queen (No. 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Regina (Crown) Ian Kennedy (Offender)
Representation:	Counsel: Mr M. Barr (Crown) Mr P. Swaine (Offender) Solicitors: Ms R. Martin (ODPP) Mr S. Young (Offender)
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