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R v Kennedy

R v Kennedy

Case [2019] NSWDC 283 7 June 2019

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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 Cruelty
Legislation 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 52
Texts Cited: New South Wales Legislative Assembly Parliamentary Debates, Hansard, 11 October 2017
Category: Sentence
Parties: Regina (Crown)
Martin James Kennedy (Offender)
Representation:
Counsel:
Mr J Agius QC with Mr P Boncardo (Crown)
Mr G James QC (Offender)
Solicitors:
Solicitor for Cth Public Prosecutions (Crown)
Murphy’s Lawyers (Offender)

File Number(s): 2017/00067968

Judgment

INTRODUCTION

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…

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 283
Case: [2019] NSWDC 283
Decision Date: 07 June 2019

CaseChat Overview and Summary

The case of R v Kennedy involves the respondent, Kennedy, charged with federal offences under the Environment Protection and Biodiversity Conservation Act 1999, specifically in relation to the importation of protected fauna, including snakes, lizards, and turtles. Kennedy was convicted and sentenced by the court, which needed to determine appropriate penalties and relevant sentencing factors. The court's decision involved assessing the severity of the offence and considering factors such as the impact of Kennedy's actions on the environment and wildlife, as well as the potential for rehabilitation through an intensive correction order.

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:

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.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Kennedy [2019] NSWDC 283

Most Recent Citation

R v Kennedy [2019] NSWCCA 242

Cases citing this decision · 1 of 1 shown

R v Kennedy
[2019] NSWCCA 242 Para 1

…he illegal importation, exportation and possession of wildlife and dealing with property reasonably suspected of being proceeds of crime: R v Kennedy [2019] NSWDC 283.…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Holder
[2019] SASCFC 73 Para 162

…The principle of totality in sentencing was described by Street CJ in R v Holder ; R v Johnson (1983) 3 NSWLR 245 at 260 as follows:…
R v DP
[2019] NSWCCA 55 Para 110

…evaluative assessment of the gravity of the particular offending or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19]-[30]; R v DP [2019] NSWCCA 55 at [42].…
R v Pullen
[2018] NSWCCA 264 Para 169

…The new sentencing scheme was considered in the decision of R v Pullen [2018] NSWCCA 264. Harrison J delivered the judgment which was agreed to by Johnson and Schmidt JJ. At [84] he said:…
Yeung v R
[2018] NSWCCA 52 Para 110

…quires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19]-[30]; R v DP [2019] NSWCCA 55 at [42].…
Xiao v R
[2018] NSWCCA 4 Para 137

…a plea of guilty should be taken into account even if there is no subjective willingness by an offender to facilitate the course of justice: Xiao v R [2018] NSWCCA 4 at [278].…
Parente v R
[2017] NSWCCA 285 Para 86

…1989 and Robison was decided in 1992. To say that gaol will be the usual result is incompatible with the judicial sentencing discretion: Parente v R [2017] NSWCCA 285. It is a prescriptive statement of what ought to be. The administration of the criminal law involves individualised justice. I accept that the major…
Honeysett v The Queen
[2014] HCA 29

…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 Moo…
Simpson v Office of Environment and Heritage
[2014] NSWLEC 34 Para 50

…He is no stranger to the courts in relation to the importing and exporting protected fauna: Simpson v The Office of Environment and Heritage [2014] NSWLEC 34; Simpson v Department of Environment and Conservation [2011] WASC 2006. He was unimpressive as a witness,…
Dasreef Pty Ltd v Hawchar
[2011] HCA 21

…odiversity 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…
Royer v The State of Western Australia
[2009] WASCA 139 Para 123

…I must ensure that the offender is not punished twice for what is essentially the same criminality: Roger v Western Australia [2009] WASCA 139 at [22].…
Morgan v R
[2007] NSWCCA 8 Para 83

…In Henri Robert Morgan v R [2007] NSWCCA 8 the Court of Criminal Appeal noted at [12]:…
Markarian v The Queen
[2005] HCA 25 Para 159

…t does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen [2005] HCA 25; 215 ALR 213.…
R v Moon
[2000] NSWCCA 534

…nte 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…
Simpson v Department of Environment and Conservation
[2011] WASC 2006 Para 50

…nd exporting protected fauna: Simpson v The Office of Environment and Heritage [2014] NSWLEC 34; Simpson v Department of Environment and Conservation [2011] WASC 2006. He was unimpressive as a witness,…
Yardley v Betts
(1979) 22 SASR 108 Para 153

…In Yardley v Betts (1979) 1 A Crim R 329 King CJ, at 333 said:…

Legislation cited in this decision · 5

Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 164)
Crimes Act 1914 (Cth)
1 mention (from Para 6)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention
Judiciary Act 1903 (Cth)
1 mention

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 Cruelty
Legislation 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 52
Texts Cited:	New South Wales Legislative Assembly Parliamentary Debates, Hansard, 11 October 2017
Category:	Sentence
Parties:	Regina (Crown) Martin James Kennedy (Offender)
Representation:	Counsel: Mr J Agius QC with Mr P Boncardo (Crown) Mr G James QC (Offender) Solicitors: Solicitor for Cth Public Prosecutions (Crown) Murphy’s Lawyers (Offender)
File Number(s):	2017/00067968