CITATION: R v Ian David KENNEDY [2008] NSWSC 703 HEARING DATE(S): 20 June 2008
JUDGMENT DATE :
11 July 2008JUDGMENT 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 168PARTIES: Ian David Kennedy (Offender)
The CrownFILE NUMBER(S): SC 2007/322 COUNSEL: S Siva (Offender)
P Lynch (Crown)SOLICITORS: Jeffreys & Associates (Offender)
Director of Public Prosecutions (Crown)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST
FULLERTON J
11 JULY 2008
JUDGMENT2007/322 R v IAN DAVID KENNEDY
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…
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- AGLC
- R v Kennedy [2008] NSWSC 703
- Case
- [2008] NSWSC 703
- Decision Date
CaseChat Overview and Summary
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.
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