R v Kennedy - [2000] QCA 48

[2000] QCA 48

COURT OF APPEAL

McMURDO P
PINCUS JA
WILLIAMS J

CA No 355 of 1999

THE QUEEN

KENNEDY, Brett Anthony Applicant

BRISBANE

DATE 28/02/2000

JUDGMENT

THE PRESIDENT: The applicant originally appealed against his conviction but he has, this morning, abandoned that appeal and now solely applies for leave to appeal against his sentence.

He was convicted in the Brisbane District Court after a trial on one count of entering a dwelling house with intent with circumstances of aggravation and one count of grievous bodily harm. He was sentenced to three years' imprisonment in respect of the grievous bodily harm and 12 months' imprisonment in respect of the entering the dwelling with intent with circumstances of aggravation with a recommendation that he be considered for parole after serving 12 months.

His main complaint is that the sentence does not recognise the fact that he has no prior convictions for violence nor does it sufficiently take into account his personal circumstances. His de facto wife who is in poor health has the sole care of their one year old child and his child aged three from an earlier relationship. He hopes to be released from prison so that he can assist her in the heavy physical work involved in looking after the children.

The facts of these offences are serious. At 6.00 a.m. on 12 September 1998 the appellant, accompanied by a second unknown person, knocked on the door of the complainant's home. When he opened the door the appellant pushed his way in and grabbed the complainant by the shirt front demanding to know the presence of Janelle, the complainant's niece and an ex defacto of the applicant.

The complainant and applicant were well known to each other and throughout the course of the incident the applicant demanded to know where Janelle was. The applicant grabbed the complainant by the collar of his shirt and struck him in the face two or three times causing him to bleed around the mouth and under the eye.

The complainant was an older and smaller man than the applicant. The complainant suffered damage to the orbital floor of his left eye resulting in double vision and requiring surgical intervention to repair it, without which the applicant would have been left with permanent double vision.

The Crown case was that the applicant had, in the past, complained to the Department of Family Services about the complainant alleging molestation by the complainant of the daughter of Janelle, the applicant's ex de facto wife.

The Crown case is that the applicant acted as a vigilante and committed this attack upon the complainant as revenge for interfering with Janelle's daughter.

The applicant is 32 years of age and has an extensive criminal history for dishonesty dating back to 1985. He also has convictions for traffic, street and minor drug offences. He rightly points out that he has no prior convictions for actual violence. I note, however, that a number of recent convictions involve weapons and…

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 [2000] QCA 48
Case: [2000] QCA 48
Decision Date: 28/02/2000

CaseChat Overview and Summary

The matter of R v Kennedy involved an applicant who sought leave to appeal against his sentence after originally appealing against his conviction. The applicant was convicted of entering a dwelling house with intent and causing grievous bodily harm. The applicant's primary grievance was that the sentence did not acknowledge his lack of prior convictions for violence and did not sufficiently consider his personal circumstances, including the care of his young children by his de facto wife who is in poor health. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive or outside the appropriate sentencing range.

The legal issues before the Court involved assessing the severity of the applicant's crimes, which included a home invasion and causing serious injury to an older and smaller man, and determining if the sentence imposed was proportionate and within the proper sentencing range. The Court also needed to consider the applicant's personal circumstances, including his lack of prior violent convictions and his role in supporting his de facto wife and children. The Court's reasoning focused on the gravity of the offenses, the lack of remorse shown by the applicant, and the principle that vigilante actions are not tolerated by the community. The Court compared the sentence to similar cases and concluded that it was within the appropriate range and did not warrant an appeal.

The Court of Appeal, consisting of McMurdo P, Pincus JA, and Williams JA, unanimously refused the applicant's application for leave to appeal against his sentence. The President noted that the sentence was well within the appropriate range, considering the seriousness of the offenses and the lack of prior violent convictions. The President highlighted that the sentencing judge had acknowledged the applicant's personal circumstances by recommending parole eligibility after 12 months. The Court found that the sentence was not manifestly excessive and adhered to the principles of justice and community standards. Consequently, the application for leave to appeal against the sentence was refused.

Orders