R v Kennedy - [2023] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0017

Between:
THE KING
-and-
DARRYL KENNEDY	Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 June 2023
DATE OF SENTENCE:	10 July 2023
CASE MAY BE CITED AS:	R v Kennedy
MEDIUM NEUTRAL CITATION:	[2023] VSC 401

---

CRIMINAL LAW — Sentence — Manslaughter — By unlawful and dangerous act — During altercation, accused twice slashed deceased’s head with filleting knife, and stabbed once to back, near armpit — Accused fled scene without assisting deceased, and discarded knife — Deceased died as a result of wound to back — Very early offer to plead guilty rejected by DPP, but accepted much later — Remorse — Criminal history for driving, dishonesty, drugs and minor violence offences — Heavy illicit drug use since teenage years — Sexually assaulted as a child — Limited formal education — On disability support pension since diagnosed with autism spectrum disorder ten years ago — Poor work history — Dysthymic disorder — Personality disorder — Reasonable prospects of rehabilitation — Hardship of prison conditions during pandemic, and in protection — Relevance of general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation — Parsimony — Current sentencing practices — Sentence of nine‑and‑a‑half years’ imprisonment with non‑parole period of six‑and‑a‑half years — But for plea of guilty, sentence of 12‑and‑a‑half years’ imprisonment with non‑parole period of nine‑and‑a‑half years — Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Rochford KC with Mr P Pickering	Abbey Hogan, Solicitor for Public Prosecutions
For Mr Kennedy	Mr A Halphen with Ms B Kelly	Stary Norton Halphen

HIS HONOUR:

Overview

In the course of an altercation inside a house in Bayswater North, Darryl Kennedy used a filleting knife to stab Christopher Taylor in the back, near his left armpit, and to slash his head. Bleeding, Mr Taylor staggered out of the house, then tripped and fell in the back yard. A neighbour heard him exclaim that he had been stabbed, and came to his aid. Mr Kennedy told the neighbour not to get involved, and muttered something about this being a lesson to “Dion”, who was the owner of the house. He then left without providing any assistance to Mr Taylor. A little later, he discarded the knife in a rubbish bin at a nearby McDonald’s restaurant.

Sadly, Mr Taylor died as a result of the stab wound to his back, which had pierced his left lung and pulmonary artery, causing extensive internal bleeding. He was aged 45.

These events happened soon after 7:00 a.m. on 12 September 2021. Mr Kennedy was arrested a short while later and charged with murder. He has remained in custody ever since.

In March this year, following a case conference in this Court, Mr Kennedy offered to plead guilty to manslaughter instead. The same offer had been made, but rejected by the…

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 [2023] VSC 401
Case: [2023] VSC 401
Decision Date: 10 July 2023

CaseChat Overview and Summary

In the case of R v Kennedy, the respondent faced the court following a violent altercation during which he inflicted multiple injuries upon the deceased, ultimately leading to the deceased's death. The injuries included a severe slash to the deceased's head with a filleting knife and a stab wound to the back near the armpit. The respondent fled the scene without offering assistance to the deceased and discarded the weapon used in the crime. The court was tasked with determining an appropriate sentence for the respondent, who had entered a plea of guilty. The case was heard in the Supreme Court of Victoria, where the sentencing principles under the Sentencing Act 1991 (Vic) were applied.

The central legal issues revolved around the appropriate weight to be given to various sentencing principles, including general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation. The court considered the respondent's criminal history, which included offences related to driving, dishonesty, drug use, and minor violence. Additionally, the court examined the respondent's personal circumstances, such as his history of heavy drug use since his teenage years, childhood sexual abuse, limited formal education, and a diagnosis of autism spectrum disorder and dysthymic disorder. The respondent's limited work history and current reliance on disability support pension were also taken into account. The court was required to balance these mitigating factors against the need for punishment and community protection.

The court held that, despite the severity of the offence, the respondent's early and genuine plea of guilty warranted a discount in the sentence. The court found that the respondent had reasonable prospects of rehabilitation, considering his expressed remorse and efforts to address his substance abuse issues. The court also noted the potential hardship the respondent might face in prison, particularly during the COVID-19 pandemic, and the need for him to be in a protected environment. The court ultimately determined a sentence of nine-and-a-half years' imprisonment with a non-parole period of six-and-a-half years. The court concluded that, but for the plea of guilty, the sentence would have been 12-and-a-half years' imprisonment with a non-parole period of nine-and-a-half years. The court's decision reflected a careful consideration of all relevant factors under the applicable sentencing legislation.

Orders