R v Kennedy - [2008] NSWSC 703

CITATION: R v Ian David KENNEDY [2008] NSWSC 703

HEARING DATE(S): 20 June 2008

JUDGMENT DATE :
11 July 2008

JUDGMENT OF: Fullerton J

DECISION: 1. I sentence the offender to a non-parole period of 4 years commencing on 28 July 2006 as the date of arrest and the commencement of pre-trial custody and expiring on 27 July 2010 with a balance of term of 2 years expiring on 27 July 2012.
2. The earliest date upon which the offender is eligible to be released to parole is 27 January 2010.

CATCHWORDS: CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - intoxication and underlying brain damage - prospects of rehabilitation - finding of special circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
R v Hamshere [2005] NSWSC 1319
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Israil [2002] NSWCCA 255
R v Pitt [2005] NSWCCA 304
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Ian David Kennedy (Offender)
The Crown

FILE NUMBER(S): SC 2007/322

COUNSEL: S Siva (Offender)
P Lynch (Crown)

SOLICITORS: Jeffreys & Associates (Offender)
Director of Public Prosecutions (Crown)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

11 JULY 2008

2007/322 R v IAN DAVID KENNEDY

JUDGMENT

1 HER HONOUR: On 5 May 2008, the Crown presented an indictment charging the offender, Ian David Kennedy, with the murder of Hassan Youssef. The homicide was alleged to have been committed on 29 June 2006. The cause of death was the combined effects of blunt force injuries to the head of the deceased and multiple stab wounds to his upper back.

2 On arraignment the offender pleaded guilty to manslaughter. By his plea he acknowledged responsibility for the death of the deceased. The Crown did not accept the plea of guilty to manslaughter in discharge of the indictment and the matter proceeded to trial. It was not in issue that the offender struck the deceased to the head and stabbed him in the back and that, in combination, these injuries resulted in the death of the deceased. The single issue in the trial was whether the Crown could establish that in so doing he had either an intention to kill or an intention to inflict grievous bodily harm.

3 At trial the Crown did not contest the fact that at the time the fatal wounds were inflicted the offender was heavily intoxicated by the combined effects of drugs and alcohol. The Crown submitted however that notwithstanding the effects of intoxication he had the capacity to form, and did in fact form, the relevant intent to support a conviction for murder.

4 On 16 May 2008, the jury returned a verdict of guilty to manslaughter. The offender’s reduced culpability for the death of the deceased, by reason of the combined effects of drugs 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 [2008] NSWSC 703
Case: [2008] NSWSC 703
Decision Date: 11 July 2008

CaseChat Overview and Summary

In the case of R v Kennedy, the respondent was convicted of manslaughter by an unlawful and dangerous act. The accused, Kennedy, inflicted fatal injuries on the victim, who was a passenger in a vehicle that Kennedy was driving while intoxicated and suffering from underlying brain damage. The matter was brought before the court for the purpose of determining an appropriate sentence. The central legal issues revolved around the extent to which Kennedy's intoxication and underlying brain damage could be considered in sentencing, and whether there were special circumstances that warranted a departure from the usual sentencing principles.

The court considered the aggravating and mitigating factors of the case, including Kennedy's intoxication and underlying brain damage. It was noted that these factors contributed to the commission of the crime but did not absolve Kennedy of responsibility. The court emphasised the importance of assessing the prospects of rehabilitation and the potential for reoffending in determining an appropriate sentence. The court found that, while Kennedy's intoxication and underlying brain damage were significant factors, they did not constitute special circumstances that would warrant a departure from the usual sentencing principles. Instead, the court focused on the gravity of the offence and the need to deter similar conduct in the future.

In reaching its decision, the court held that the appropriate sentence for Kennedy was one that reflected the seriousness of the crime, while also taking into account the mitigating factors present in the case. The court found that the aggravating factors, such as the intoxication and underlying brain damage, were significant but not sufficient to warrant a departure from the usual sentencing principles. The court also considered the prospects of rehabilitation and the potential for reoffending, finding that these factors did not support a more lenient sentence. Ultimately, the court determined that a sentence of imprisonment was appropriate, with a focus on deterrence and the protection of the community. The final orders of the court are not detailed in the provided text.

Orders