R v Kennedy - [2016] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kennedy v R [2016] NSWCCA 123
Hearing dates: 4 May 2016
Decision date: 23 June 2016
Before: Leeming JA at [1];
R A Hulme J at [2];
R S Hulme AJ at [50]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – wound with intent to cause grievous bodily harm – no error in assessment of objective seriousness – provocative conduct appropriately taken into account – obvious “slip” referring to death of victim did not affect assessment – no error in finding moral culpability not significantly diminished due to applicant’s background – no error in finding no significant diminution for requirements of general and specific deterrence or denunciation – applicant appreciated gravity and consequences of conduct – sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 33(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A, 44
Cases Cited: Kentwell v R [2014] HCA37; 252 CLR 601
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Baker [2000] NSWCCA 85
R v Millwood [2012] NSWCCA 2
R v Wright (1997) 93 A Crim R 48
Category: Principal judgment
Parties: Damien James Kennedy (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms H Cox (Applicant)
Ms M Cinque SC (Crown)
Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd
Solicitor for Public Prosecutions

File Number(s): 2014/41073
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 June 2015

Before:

Frearson SC DCJ

File Number(s):

2014/41073

Judgment

LEEMING JA: I agree with R A Hulme J.
R A HULME J: Damien James Kennedy was sentenced by his Honour Judge Frearson SC in the District Court at Port Macquarie on 19 June 2015. He had pleaded guilty to an offence of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is imprisonment for 25 years and there is also prescribed a standard non-parole period of 7 years. His Honour sentenced Mr Kennedy to imprisonment for 6 years 6 months with a non-parole period of 3 years 6 months dating from 6 April 2015.
Mr Kennedy (“the applicant”) seeks leave to appeal against the severity of the sentence imposed. He relies upon four grounds of appeal:

Ground 1:   His Honour erred in his assessment of the objective seriousness of the offence
Ground 2:   His Honour erred in finding that the applicant’s moral culpability was not significantly diminished
Ground 3:   His Honour erred in finding that there was no significant diminution of the requirement for general and specific deterrence or denunciation
Ground 4:   The sentence imposed was manifestly excessive

Facts

There was no dispute as to the facts as set out in the statement of facts tendered before the judge from which I draw the following. On Saturday 8 February 2014 the 15 year old…

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 [2016] NSWCCA 123
Case: [2016] NSWCCA 123
Decision Date: 23 June 2016

CaseChat Overview and Summary

The case of R v Kennedy involved the appellant, who was appealing against a sentence imposed following his conviction for wounding with intent to cause grievous bodily harm. The matter was heard in the Court of Appeal. The central dispute in this appeal was the appellant's challenge to the severity of the sentence imposed, arguing that it was manifestly excessive and not appropriately balanced with the mitigating factors of his background and the circumstances of the incident.

The court was required to determine whether the primary judge erred in assessing the objective seriousness of the crime, in considering the provocative conduct of the victim, and in evaluating the appellant's moral culpability and the requirements of general and specific deterrence. Additionally, the court needed to assess whether the sentence was disproportionate when considering the principles of denunciation.

In delivering its judgment, the Court of Appeal found no error in the primary judge's assessment of the objective seriousness of the crime, noting that the provocative conduct of the victim was appropriately taken into account. The court also held that an obvious "slip" referring to the death of the victim did not affect the overall assessment. The court determined that there was no error in finding that the appellant's background did not significantly diminish his moral culpability, and that the sentence appropriately balanced the requirements of general and specific deterrence and denunciation. The court concluded that the appellant appreciated the gravity and consequences of his conduct and that the sentence was not manifestly excessive. Consequently, the appeal was dismissed.

Orders