In sentencing the respondent, Patrick Kennedy, Judge Rea acknowledged the dilemma not infrequently posed by two conflicting sentencing purposes.[1] On the one hand was the need to punish serious drug offending. On the other hand was the need to recognise and promote Mr Kennedy’s positive steps towards rehabilitation. The latter factor prevailed, resulting in a non-custodial sentence and generating this application by the Solicitor-General for leave to appeal against what he says was a manifestly inadequate sentence or one which was wrong in principle.[2]
[1] R v Kennedy DC Napier CRI-2009-020-5725, 8 December 2010.
[2]Pursuant to the Crimes Act 1961, s 383(2).
Mr Kennedy pleaded guilty to two counts of cultivating cannabis prior to trial in the District Court at Napier. He pleaded guilty to possessing a sawn-off shotgun during the trial. He was found guilty by the jury on the remaining charge of possessing cannabis for the purpose of sale. Judge Rea treated the cultivation charges as the lead or index charges. He sentenced Mr Kennedy to 12 months home detention and 400 hours community work on each concurrently. A fine of $5,000 was imposed on the possession for sale charge.
Ms Edwards, counsel for the Solicitor-General, submits that the starting point of three years imprisonment adopted by the Judge was too low in terms of this Court’s guideline judgment in R v Terewi;[3] that the discount of one year allowed for personal mitigating features was excessive; and that a sentence of home detention did not adequately address relevant sentencing goals, specifically denunciation and deterrence.

Circumstances

[3] R v Terewi [1999] 3 NZLR 62 (CA).

The relevant facts fall into a narrow spectrum. When executing a search warrant at Mr Kennedy’s home in late 2009, the police found over 10 kilograms of cannabis head in the house and 40 plants growing outside. There were 21 ounce bags containing cannabis, an accepted denomination in cannabis dealing, in a blue drum. There were three other blue drums containing 9.7 kilograms of good quality loose cannabis head material. Some lower quality cannabis and several thousand cannabis seeds were also found. Apart from the cannabis, there were two sets of digital scales; a number of resealable plastic bags; a single-barrelled 12 gauge shotgun with a laser sight; some other drug paraphernalia; and $8,860 in cash.
In the opinion of a drug expert called for the Crown, the cannabis if sold could have realised between $70,000 and $185,000, depending on when and in which denominations it was sold.

District Court

Starting point

Given the quantity of cannabis in his possession, Mr Kennedy…

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 Kennedy

Details

AGLC: R v Kennedy [2011] NZCA 109
Case: [2011] NZCA 109
Decision Date: 28 March 2011

CaseChat Overview and Summary

The case of R v Kennedy was heard in the Court of Appeal of New Zealand, with the appeal against sentence being declined by the court. The case involved Patrick Kennedy, who had pleaded guilty to cultivating cannabis and possessing a sawn-off shotgun. The primary legal issues were whether the starting point for sentencing was too low and if the discount for personal mitigating factors was excessive. The court found that the starting point should have been higher, at least three and a half years imprisonment, and that the discount for personal mitigating factors was inappropriate. The court concluded that the sentence of home detention did not adequately address relevant sentencing goals. However, given the significant progress Mr Kennedy had made in rehabilitation since his sentencing, the court declined to grant leave to appeal, ensuring that the original sentence did not have precedential value for future cases.

Orders