R v Kenny - [2013] NZHC 2787

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-032-171 [2013] NZHC 2787

THE QUEEN

v

JASON MARK JOHN KENNY

Hearing: 23 October 2013

Counsel: G A Kelly for Crown
M Bott for Defendant

Sentence: 23 October 2013

SENTENCE OF RONALD YOUNG J

[1] Mr Kenny before I sentence you I have to give you a first strike warning. You will also be given a piece of paper that essentially says the same thing. But you have now been convicted of committing an indecent act on a child under 12 and I now must give you a first warning.

[2] The warning I give you will warn you of the consequences if you are convicted of any serious violent offence committed after this warning. As I have said there will be a notice which records in writing the consequences.

[3] If you are convicted of any serious violent offence except murder committed after you receive this warning you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence other than life imprisonment for manslaughter or preventive detention, then you will serve that
sentence without parole or early release.

R v KENNY [2013] NZHC 2787 [23 October 2013]

[4] If you are convicted of a murder committed after you receive the first warning you will be sentenced to imprisonment for life. You must serve the life sentence without parole unless it would be manifestly unjust to do so. If you receive a life sentence without parole you will not be released from prison. If serving a sentence without parole would be manifestly unjust, the Judge must specify the minimum period of imprisonment you will serve.

[5] And so having giving you a first strike warning I will now proceed to sentence you. As I have said I formally convict you on count two and discharge you on count one.

[6] And so you are for sentence having pleaded guilty to doing an indecent act with a child under 12 years of age. You have pleaded guilty after a sentence indication hearing.

[7] Dealing firstly with the facts. You and the victim’s mother began a relationship in 2012. The victim at the time was five years of age. You and the victim were in the hall of their home. You bent down to pick up the victim and as you did so you put your arm between the victim’s legs placing your hand over her vagina on the outside of her underwear. You moved your hand slowly between her legs. You then removed your hand from between her legs, placed it around her waist and then on her bottom over her underwear but under her dress and rubbed your hand back and forward.

[8] You have a number of serious convictions, Mr Kenny, for sexual offending. But in this case the Crown do not seek a sentence of preventive detention. They accept there is not sufficient likelihood of reoffending given you have accepted…

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 [2013] NZHC 2787
Case: [2013] NZHC 2787
Decision Date: 23 October 2013

CaseChat Overview and Summary

The case of R v Kenny involved the defendant, Jason Mark John Kenny, who was convicted of committing an indecent act on a child under 12 years of age. The matter was heard in the High Court of New Zealand, Wellington Registry. The Crown counsel, G A Kelly, represented the prosecution, while M Bott represented the defendant. Sentencing occurred on October 23, 2013.

The primary legal issues addressed by the court included determining the appropriate starting point for the sentence, considering the factors that warranted an uplift in the sentence, and applying the appropriate discount for the defendant's guilty plea. The court had to balance these considerations with the defendant's previous history of sexual offending, his breach of parole, and the nature and seriousness of the current offence.

The court found that the starting point for the sentence was 20 months' imprisonment, taking into account that the defendant was in a position of trust and the abuse involved a very young child. An uplift of four months was justified due to the defendant's previous history of similar offending, and an additional two-month uplift was considered appropriate for the breach of parole. The court discounted the start sentence by 15 per cent, resulting in a final sentence of 22 months' imprisonment. The court deemed home detention inappropriate due to the defendant's past suggesting a continuing high risk.

The final orders of the court were that the defendant, Jason Mark John Kenny, was sentenced to 22 months' imprisonment on the charge of committing an indecent act on a child under 12 years of age. Additionally, the court issued a first strike warning, outlining the consequences of future convictions for serious violent offences.

Orders