R v Kenny - [2021] NSWDC 17

District Court

New South Wales

Medium Neutral Citation: R v Kenny [2021] NSWDC 17
Hearing dates: 18 December 2020
Date of orders: 12 February 2021
Decision date: 12 February 2021
Jurisdiction: Criminal
Before: Weinstein DCJ
Decision:
The offender is sentenced to a term of 8 years imprisonment and a non-parole period of 5 years and 7 months

Catchwords:
Sentence -Fail to comply with reporting obligation – Grooming - Possess child abuse material– Cybersex relationship - Normalising extreme sexual depravity- registered child as slave - Similar criminal history of child sexual offending – Guarded prospects of rehabilitation - No offender is irredeemable

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996

Cases Cited:
Burton v R [2020] NSWCCA 127
Lyons v R [2017] NSWCCA 204
Markarian v The Queen [2005] HCA 25
Milliner v R [2019] NSWCCA 127
MinehanvR (2010) 201 A Crim R 243
MinehanvR (2010) 201 A Crim R 243
Muldrock vThe Queen (2011) 244 CLR 120
R v Dagwell [2006] NSWCCA 98
Small v R [2020] NSWCCA 216
Tector v Regina [2008] NSWCCA 151

Category: Sentence
Parties: Regina
John Kenny
Representation: Mr S Barlow (Crown)
Mr S Wilkinson (Defence)

File Number(s): 2020/64723

Judgment

The offender, John Kenny, born in 1970, is before the court for sentence for four counts of fail to comply with reporting obligation contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 for which the maximum penalty is 5 years imprisonment with no standard non-parole period [sequences 4,5,7 and 8]. He is also charged with 1 count of possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 for which the maximum penalty is 10 years imprisonment with no standard non-parole period [sequence 9], one count of groom child aged between 14 and 16 contrary to s 66EB(3) of the Crimes Act 1900 for which the maximum penalty is 10 years imprisonment and the standard non-parole period is 4 years [sequence 10], and one count of groom child aged under 14 contrary to s 66EB(3) of the Crimes Act 1900 for which the maximum penalty is 13 years imprisonment and the standard non-parole period is 5 years [sequence 11]. The offender is also charged with possess pistol without authorisation contrary to s 7(1) of the Firearms Act 1996 for which the maximum penalty is 14 years imprisonment and the standard non-parole period is 4 years [sequence 12].
There are also matters on a Form 1 which the offender asks me to take into account when sentencing him. These are 4 charges of fail to comply with reporting obligation contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 attaching to the sequence 10 offence.
The Agreed Facts are as follows:

The offender in this matter is John Kenny.

The victim is RR.

In 2009 Kenny was convicted and sentenced for two…

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 Kenny

Details

AGLC: R v Kenny [2021] NSWDC 17
Case: [2021] NSWDC 17
Decision Date: 12 February 2021

CaseChat Overview and Summary

The appeal in this case concerns the sentence imposed on Kenny by the County Court of Victoria. Kenny was convicted on two charges of engaging in a sexual relationship with a child under the age of 16 years and one charge of possessing child abuse material. The court had to consider the seriousness of the offending, the impact on the victim, and the offender's prospects for rehabilitation.

The primary legal issue before the court was whether the County Court had erred in assessing the seriousness of the offending. The court had to determine if the sentence was manifestly inadequate, having regard to the gravity of the crimes and the need for punishment and deterrence. The court also had to consider whether the County Court had appropriately evaluated the offender's prospects for rehabilitation.

The Court of Appeal found that the County Court had correctly assessed the gravity of the offending and the need for punishment and deterrence. The court noted that the offending involved serious breaches of trust, manipulation, and exploitation of the victim. The Court of Appeal found that the County Court had appropriately considered the offender's prospects for rehabilitation, noting that the offender had a similar criminal history and a guarded prognosis for rehabilitation. The Court of Appeal held that the sentence was not manifestly inadequate and dismissed the appeal.

The Court of Appeal confirmed the sentence imposed by the County Court, which was a term of 8 years imprisonment with a non-parole period of 5 years and 7 months.

Orders

Orders of the court

The offender is sentenced to a term of 8 years imprisonment and a non-parole period of 5 years and 7 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kenny [2021] NSWDC 17
Hearing dates:	18 December 2020
Date of orders:	12 February 2021
Decision date:	12 February 2021
Jurisdiction:	Criminal
Before:	Weinstein DCJ
Decision:	The offender is sentenced to a term of 8 years imprisonment and a non-parole period of 5 years and 7 months
Catchwords:	Sentence -Fail to comply with reporting obligation – Grooming - Possess child abuse material– Cybersex relationship - Normalising extreme sexual depravity- registered child as slave - Similar criminal history of child sexual offending – Guarded prospects of rehabilitation - No offender is irredeemable
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	Burton v R [2020] NSWCCA 127 Lyons v R [2017] NSWCCA 204 Markarian v The Queen [2005] HCA 25 Milliner v R [2019] NSWCCA 127 MinehanvR (2010) 201 A Crim R 243 MinehanvR (2010) 201 A Crim R 243 Muldrock vThe Queen (2011) 244 CLR 120 R v Dagwell [2006] NSWCCA 98 Small v R [2020] NSWCCA 216 Tector v Regina [2008] NSWCCA 151
Category:	Sentence
Parties:	Regina John Kenny
Representation:	Mr S Barlow (Crown) Mr S Wilkinson (Defence)
File Number(s):	2020/64723