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,…
Continue reading Kennedy v Police
Sign in free to access the full text
- AGLC
- Kennedy v Police [2019] NZHC 2644
- Case
- [2019] NZHC 2644
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.