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R v Kennedy

R v Kennedy

Case [2019] NSWCCA 242 18 October 2019

Dealing with Proceeds of Crime

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Kennedy [2019] NSWCCA 242
Hearing dates: 27 September 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Before: Payne JA and Fullerton J at [1]; Adamson J at [100]
Decision:
(1)   Appeal allowed;
(2)   Set aside the sentence imposed by Grant DCJ on 7 June 2019 and in its place:
(a)   impose an aggregate sentence of imprisonment of 4 years;
(b) under s 19AB(2) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years and 6 months;
(c)   the sentence and non-parole period to date from 18 October 2019.

Catchwords:
CRIME – appeals – appeal against sentence – manifest inadequacy – whether 3 years imprisonment served by way of intensive correction order was manifestly inadequate – sentence did not reflect overall gravity of offending and importance of general deterrence and accountability – manifestly inadequate – resentenced
CRIME – federal offences – attempted exportation of regulated native specimens – importation and attempted importation of regulated live specimens – possession of non-native CITES-regulated specimens – dealing with proceeds of crime
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 19AB, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 5, ss 66, 68
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code (Cth), ss 11.1, 400.9
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303CA, 303DA, 303DD, 303EK, 303GN
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Casella v R [2019] NSWCCA 201
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DL v The Queen [2018] HCA 32; 92 ALJR 764
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Jones v R [2009] NSWCCA 169
Klein v R (1989) 39 A Crim R 332
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Morgan v R [2007] NSWCCA 8
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Parente v R [2017] NSWCCA 284
R v Cahill [2015] NSWCCA 53
R v Fangaloka [2019] NSWCCA 173
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Pullen [2018] NSWCCA 264
R v Robison (1992) 62 A Crim R 374
R v Wong [2018] NSWCCA 20
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Regina (Appellant)
Martin Brian Kennedy (Respondent)
Representation:
Counsel:
D Staehli SC / P Boncardo (Appellant)
G James QC (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Murphy’s Lawyers Inc (Respondent)

File Number(s): 2017/00067968
Publication restriction: Nil
Decision under appeal

Court…

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] NSWCCA 242
Case: [2019] NSWCCA 242
Decision Date: 18 October 2019

CaseChat Overview and Summary

The case of R v Kennedy involved an appeal against sentence by the defendant, Kennedy, who had been convicted of various federal offences related to the attempted exportation of regulated native specimens, importation and attempted importation of regulated live specimens, possession of non-native CITES-regulated specimens, and dealing with proceeds of crime. The court was required to determine whether the original sentence of three years' imprisonment, served by way of an intensive correction order, was manifestly inadequate.

The primary legal issue before the court was whether the sentence imposed was manifestly inadequate in light of the overall gravity of the offending and the importance of general deterrence and accountability. The court considered the nature of Kennedy's offences, which involved significant breaches of wildlife protection laws and posed a threat to biodiversity and ecological balance. The court also examined the impact of the crimes on the community and the need to uphold the rule of law.

In assessing the sentence, the court found that the original sentence did not adequately reflect the seriousness of Kennedy's actions and the need to deter similar offences in the future. The court emphasised the importance of ensuring that sentences serve the purposes of punishment, deterrence, rehabilitation, and accountability. Consequently, the court concluded that the sentence was manifestly inadequate and ordered a resentencing hearing.

Orders