Kennedy v The Queen - [2015] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/2014
[2015] NZCA 257

BETWEEN	PETER JOHN KENNEDY Appellant
AND	THE QUEEN Respondent

Hearing:	9 June 2015
Court:	White, Venning and Williams JJ
Counsel:	C P Brosnahan for Appellant M J Lillico for Respondent
Judgment:	18 June 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

The appellant, Mr Kennedy, was convicted after a jury trial in the New Plymouth District Court on one count of threatening to cause grievous bodily harm and sentenced by Judge Roberts to 180 hours community work.[1]
[1]R v Kennedy DC New Plymouth CRI-2012-021-001134, 26 February 2014.
Mr Kennedy initially appealed against both his conviction and his sentence,

but he subsequently abandoned the conviction appeal and pursued only the sentence appeal.[2]

[2]A formal notice of abandonment of appeal was filed on 11 June 2015.

For Mr Kennedy, Mr Brosnahan submitted that the sentence was manifestly excessive because the Judge failed to consider Mr Kennedy’s personal situation, which would have shown that he faced a three hour round trip to attend community work. Mr Brosnahan pointed out that the sentence was imposed immediately after the conviction was entered following the jury’s verdict and without the benefit of a probation report or a remand for restorative justice. Mr Brosnahan also suggested that no consideration had been given to a monetary penalty by way of fine or emotional harm reparation.
Some support for Mr Brosnahan’s submissions is provided by the Judge’s sentencing notes which read in full:
[1]       You have heard what I have to say, Kennedy. Your mouth is filthy. It is like an open sewer. For you to talk to a woman like that is nothing short of disgraceful. I deal with you on the basis of the singular verdict of guilty.
[2]       I have indicated to you my feelings. This was a campaign that you waged against those people, deliberately engineered I suspect to make their stay as unpleasant as possible. You were successful.
[3]       Taking all matters into account I have sentenced you to 180 hours’ community work. I am told that your convictions are dated and that nothing is relevant. That is the sentence. Stand down.
Mr Brosnahan, who was not Mr Kennedy’s trial counsel, made his submissions without the benefit of the transcript of the exchange between the Judge and trial counsel before sentencing. We have obtained the transcript since the hearing of the appeal. It reads in full:
THE COURT:
What would you have me do?
MS LAIRD:
Sir, I wonder if a report is appropriate?
THE COURT:
Mrs Marriner is shaking her head, but…
MS MARRINER:
Sir –
THE COURT:
Mrs Marriner – yeah?
MS MARRINER:
I don’t believe it is, his history, Sir, it does not have anything similar in nature and there's no appearance since '95 so we have somebody who is…
MS LAIRD:
They're historical, Sir, and not recent.
THE…

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 The Queen

Details

AGLC: Kennedy v The Queen [2015] NZCA 257
Case: [2015] NZCA 257
Decision Date: 18 June 2015 at 2.30 pm

CaseChat Overview and Summary

Peter John Kennedy, the appellant, was convicted in the New Plymouth District Court on one count of threatening to cause grievous bodily harm and was sentenced to 180 hours of community work. He appealed against his sentence, which was subsequently dismissed by the Court of Appeal of New Zealand. The appeal focused on whether the sentence was manifestly excessive, considering the appellant's personal situation and the absence of a probation report or restorative justice remand. The court found that the judge had considered the appellant's personal circumstances and the practical difficulties of his remote location and farm operations, as well as the suggestion of monetary penalties.

The legal issues in this appeal centered around whether the sentence was manifestly excessive and if the judge properly considered the appellant's personal situation under section 9(h) of the Sentencing Act 2002. Counsel for the appellant argued that the judge failed to consider these factors, resulting in an excessive sentence. The court examined the judge's sentencing notes and the exchange with counsel before the sentence was imposed, finding that the judge had indeed considered the appellant's personal situation and other relevant factors. The court concluded that the sentence was within the appropriate range for the offence and could not be considered manifestly excessive.

The Court of Appeal determined that the appellant's submissions were not substantiated, as the judge had taken into account the appellant's personal situation, including the practical difficulties of his remote location and the impact on his farm, as well as the suggestion of monetary penalties. The court found that the judge's decision not to obtain a probation report was made with the support of trial counsel, and an adjournment for restorative justice was not requested. Therefore, the court dismissed the appeal against the sentence. The appeal against the sentence was dismissed, and no further orders were made.

Orders