Kennedy v R [2013] NSWCCA 19

Kennedy v R [2013] NSWCCA 19

The sentence appeal succeeded because the Sentencing Judge materially misstated the Applicant's criminal history, including wrongly saying he had previously served a custodial sentence, imposed a full-time rehabilitation parole condition without procedural fairness, and erred in parity by using the same starting point for the Applicant and co-offender Kirby despite Kirby's far more serious custodial history and the fact that Kirby committed the offences while on conditional liberty. Those errors justified reducing the sentence for Count 1 while leaving the other sentences undisturbed and quashing the rehabilitation condition.

Jurisdiction
Australia
Judgment Date
13 February 2013
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed by Judge Nicholson SC in the District Court on 1 June 2012
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; Applicant re-sentenced with a reduced sentence on Count 1 and immediate release on parole subject to supervision.
Legal Topics
['enter Dwelling With Intent to Commit Serious Indictable Offence' 'robbery in Company' 'stalk/intimidate With Intent to Cause Fear of Physical or Mental Harm' 'parity Principle' 'conditional Liberty' 'procedural Fairness in Parole Conditions' 'criminal Record']
['criminal Law' 'sentencing'] ['enter Dwelling With Intent to Commit Serious Indictable Offence' 'robbery in Company' 'stalk/intimidate With Intent to Cause Fear of Physical or Mental Harm' 'parity Principle' 'conditional Liberty' 'procedural Fairness in Parole Conditions' 'criminal Record']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed by Judge Nicholson SC in the District Court on 1 June 2012

Legal Issues

  1. 1 ["Whether the Sentencing Judge erred by failing to properly give weight to the Applicant's limited criminal record and the fact that he had never served a custodial sentence." 'Whether the Sentencing Judge denied procedural fairness by imposing a full-time rehabilitation condition on release to parole without giving counsel an opportunity to make submissions.' "Whether the Sentencing Judge erred in assessing the Applicant relative to his co-offender by treating their records and culpability as indistinguishable notwithstanding the co-offender's more serious record and conditional liberty." 'Whether the Applicant had a justifiable sense of grievance because of disparity between the sentence imposed on him and the sentence imposed on his co-offender.']

Ratio Decidendi

The sentence appeal succeeded because the Sentencing Judge materially misstated the Applicant's criminal history, including wrongly saying he had previously served a custodial sentence, imposed a full-time rehabilitation parole condition without procedural fairness, and erred in parity by using the same starting point for the Applicant and co-offender Kirby despite Kirby's far more serious custodial history and the fact that Kirby committed the offences while on conditional liberty. Those errors justified reducing the sentence for Count 1 while leaving the other sentences undisturbed and quashing the rehabilitation condition.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; Applicant re-sentenced with a reduced sentence on Count 1 and immediate release on parole subject to supervision.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Quash the sentence imposed by Judge Nicholson SC.' 'In respect of Count 1, sentence the Appellant to a non-parole period of 18 months to commence 26 May 2011 and expire 25 November 2012 with an additional term of 15 months to expire 25 February 2014.' 'In respect of Count...