R v Kennedy

The case of *R v Kennedy* concerned a Crown appeal against a sentence imposed on a defendant who had pleaded guilty to trafficking in a controlled drug. The sentencing judge had fixed a head sentence of two years and four months imprisonment, reduced by four months for time spent in custody, resulting in a head sentence of two years. A non-parole period of 12 months was fixed, and the sentence was suspended upon the defendant entering into a two-year good behaviour bond, supervised for 18 months. The defendant possessed an extensive criminal history.

The legal issues before the appellate court were whether the sentence imposed was manifestly inadequate and whether the sentencing judge had erred in exercising discretion to suspend the term of imprisonment. The Crown's appeal was predicated on the sentencing judge's decision to suspend the sentence, despite the defendant's criminal history, and on the Crown's own conduct during the sentencing hearing.

The court considered the Director's conduct at the sentencing hearing, noting that the Director had, during submissions, raised the possibility of suspending the term of imprisonment and invited written submissions from the Director on the topic. Crucially, no opposing submission was made by the Director at that time. The appellate judges acknowledged that this lack of opposition weighed heavily against the grant of permission to appeal. Furthermore, the defendant had already been released into the community and was complying with the terms of his good behaviour bond, with his rehabilitation progressing. One judge indicated that were it not for the Director's lack of opposition and the defendant's release, the appeal would have been allowed both on the head sentence and the suspension of that sentence.

Ultimately, one judge refused permission to appeal, while another granted permission but agreed with the reasoning that the sentence was too low and that the suspension was an error, but would have allowed the appeal only due to the Director's prior stance and the defendant's release. The outcome was that permission to appeal was refused.