District Court
New South Wales
Medium Neutral Citation: R v Kennedy [2019] NSWDC 283 Hearing dates: 30 - 31 May 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: An aggregate period of imprisonment of three years is to be served by way of an intensive correction order commencing 7 June 2019. The intensive correction order is subject to the following conditions:
The offender must not commit any offence.
The offender must perform 700 hours of community service work.
The offender is to abstain from using illicit drugs.
The offender must submit to supervision by a community corrections officer.
The offender is to report to the City Community Corrections office within five days.
Catchwords: CRIME — Federal offences — Environment Protection and Biodiversity Conservation Act 1999 — Importation of Protected Fauna — Snakes, Lizards, Turtles;
SENTENCING — Penalties — Intensive correction orders;
SENTENCING — Relevant factors on sentence — Undue CrueltyLegislation Cited: Crime (Sentencing Procedure) Act 1999
Crimes Act 1914
Criminal Code (Commonwealth)
Environment Protection and Biodiversity Conservation Act 1999
Evidence Act 1995
Judiciary Act 1903 (Cth)Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588
Henri Robert Morgan v R [2007] NSWCCA 8
Honeysett v R [2014] HCA 29; 253 CLR 122
Klein (1989) 39 A Crim R 332
Parente v R [2017] NSWCCA 285
R v DP [2019] NSWCCA 55
R v Dood [1991] 57 A Crim R 349
R v Holder; R v Johnson (1983) 3 NSWLR 245
R v Moon [2000] NSWCCA 534
R v Pullen [2018] NSWCCA 264
Roger v Western Australia [2009] WASCA 139
Simpson v Department of Environment and Conservation [2011] WASC 2006
Simpson v The Office of Environment and Heritage [2014] NSWLEC 34
The Director of Public Prosecutions (Cth) v Beattie 2017 NSWCCA 301
The Queen v Robison (1992) 62 A Crim R 374
Xiao v R [2018] NSWCCA 4
Yardley v Betts (1979) 1 A Crim R 329
Yeung v R [2018] NSWCCA 52Texts Cited: New South Wales Legislative Assembly Parliamentary Debates, Hansard, 11 October 2017 Category: Sentence Parties: Regina (Crown)
Martin James Kennedy (Offender)Representation: Counsel:
Solicitors:
Mr J Agius QC with Mr P Boncardo (Crown)
Mr G James QC (Offender)
Solicitor for Cth Public Prosecutions (Crown)
Murphy’s Lawyers (Offender)
File Number(s): 2017/00067968
Judgment
INTRODUCTION
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Martin James Kennedy appears before me for sentence, he has pleaded guilty to the following offences:
Sequence 83: On or about 26 July 2016 at Sydney in New South Wales he did attempt to export specimens, namely 24 shingleback lizards and ten native turtles and the said specimens were regulated native specimens.
Sequence 84: On or about 12 October 2016 at Sydney in New South Wales did attempt to export specimens namely 9 shingleback lizards and the said specimens were regulated native specimens.
Sequence 85: On or about 19 October 2016 at Sydney in New South Wales did import specimens namely 23 Chinese soft shell turtles, 15 alligator…
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- AGLC
- R v Kennedy [2019] NSWDC 283
- Case
- [2019] NSWDC 283
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the determination of an appropriate penalty for the offence of importing protected fauna and the imposition of conditions for an intensive correction order. The court had to consider the potential for deterrence and rehabilitation, as well as the need for punishment. It also had to weigh the aggravating factor of undue cruelty in Kennedy's actions, which involved the mistreatment of protected animals. The court had to balance these considerations in deciding on the appropriate sentence and conditions for the intensive correction order.
In its reasoning, the court took into account the seriousness of the offence, the potential for rehabilitation, and the need for deterrence. The court determined that an intensive correction order was an appropriate sentence, as it would allow for rehabilitation and community service while also imposing a degree of punishment. The court imposed specific conditions on the intensive correction order, including a prohibition on committing any offence, the requirement to perform 700 hours of community service work, abstention from using illicit drugs, supervision by a community corrections officer, and reporting to the City Community Corrections office within five days. The court considered these conditions necessary to ensure that Kennedy would be deterred from future offending and to protect the community.
The final orders of the court included an aggregate period of imprisonment of three years to be served by way of an intensive correction order, commencing on 7 June 2019. The intensive correction order included the aforementioned conditions, which the court deemed necessary to achieve the purposes of sentencing in this case.
Orders
Orders of the court
An aggregate period of imprisonment of three years is to be served by way of an intensive correction order commencing 7 June 2019. The intensive correction order is subject to the following conditions:
1.
The offender must not commit any offence.
2.
The offender must perform 700 hours of community service work.
3.
The offender is to abstain from using illicit drugs.
4.
The offender must submit to supervision by a community corrections officer.
5.
The offender is to report to the City Community Corrections office within five days.
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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