Kennedy v Police - [2019] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-000020

[2019] NZHC 2644

BETWEEN
SONNY JAMES KENNEDY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 October 2019

Appearances:

K L McHugh for Appellant

R W Donnelly for Respondent

Judgment:

16 October 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 16 October 2019 at 4:00 p.m.

Registrar/Deputy Registrar Date: 16 October 2019

KENNEDY v NEW ZEALAND POLICE [2019] NZHC 2644 [16 October 2019]

Introduction

[1] The appellant, Sonny James Kennedy, was convicted in the District Court at Invercargill with respect to four separate sets of offending: driving whilst suspended (3rd and subsequent), committing an indecent act in a public place, indecent assault and the possession of cannabis. On 14 May 2019, Judge Farnan sentenced the appellant effectively to a total of 25 months’ imprisonment based upon the indecent assault as the lead offence.

[2]Mr Kennedy appeals this sentence.

Facts

[3] On 27 December 2017 the appellant faced his third disqualification from driving due to demerit points. The driving charge arose out of the events of 13 March 2018, when the appellant was the driver of a motor vehicle in rural Southland. His vehicle was stopped due to excessive speed. That constituted the driving while suspended conviction (which was in the aggravated form).

[4] The second set of offending occurred in the early afternoon of 3 July 2018. At that time the appellant drove to the carpark of a public swimming pool in Invercargill. He parked by the fence at the back of the carpark area and walked to the bushes by the fence that separate the swimming pool and an adjacent rugby park. The two victims, young teenagers, were running around the rugby park as part of their school physical education programme. The appellant stood in the bushes watching them. He then pulled down his shorts and started to masturbate. Both of the victims saw his actions and ran to tell their teacher. The appellant quickly walked back to his van and drove out of the carpark. Those actions constituted the indecent act.

[5] The third set of offending involved a 21 year old female university student victim who was also unknown to the appellant. On 30 August 2018, it was a warm autumn day and the Dunedin Botanical Gardens were busy. At around 3.20 pm, the victim was relaxing in the sun, reading, and listening to music in a relatively secluded part of the Gardens, off the main walkway. There is limited visibility to the public from the area where she was positioned. The appellant entered the Gardens wearing

heavy clothing and sunglasses which formed a partial disguise. He stood in nearby bushes watching the victim as she read, leaving briefly when she noticed him watching her. Approximately ten minutes later, the appellant approached the victim from behind and out of her sight. By then, she was lying on the grass and did not hear the appellant approach,…

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 Kennedy v Police

Details

AGLC: Kennedy v Police [2019] NZHC 2644
Case: [2019] NZHC 2644
Decision Date: 16 October 2019

CaseChat Overview and Summary

Kennedy v Police is a case where the appellant, Sonny James Kennedy, contests the sentence handed down by Judge Farnan in the District Court at Invercargill. Kennedy was convicted on four counts: driving while suspended, committing an indecent act in a public place, indecent assault, and possession of cannabis. The primary focus of the appeal is the sentence for the indecent assault, which led to a total imprisonment term of 25 months. Kennedy argues that the sentence was excessively high and that home detention should have been considered instead.

The legal issues in this case revolve around whether the sentence imposed by the District Court was manifestly excessive and whether the starting point and uplifts applied were appropriate. Kennedy's primary contention is that the starting point for the indecent assault charge was too high and that the uplifts for the other charges were inadequate. Additionally, Kennedy argues that the discount applied for mitigating factors, including his guilty plea and mental health issues, was insufficient. The Crown contends that the sentence was within the appropriate range, considering the unique and distressing nature of the indecent assault.

The Court's reasoning involved a detailed analysis of the starting point and uplifts for each charge. The Court found that while the starting point of three years for the indecent assault was somewhat high, the overall uplifts and discounts applied by Judge Farnan led to a sentence that was within the appropriate range. The Court noted that the nature of the indecent assault, involving ejaculation on an unsuspecting victim, justified a higher starting point. However, the total discount applied for mitigating factors and the guilty plea was deemed adequate. The Court concluded that any adjustment to the sentence would merely be tinkering and thus dismissed the appeal.

In conclusion, the appeal was dismissed, and the original sentence imposed by Judge Farnan was upheld as appropriate. The Court found no manifest error in the sentencing process and determined that the sentence was justified by the relevant sentencing principles.

Orders