Kennedy v R [2016] NSWCCA 187

Kennedy v R [2016] NSWCCA 187

The sentencing judge erred through oversight or inadvertence by finding special circumstances intended to facilitate the applicant's rehabilitation in the community but then imposing a sentence that maintained the statutory ratio without giving reasons. That failure was a failure to take into account and give effect to a material consideration. On re-sentencing, despite the Crown's submissions about the applicant's prior driving convictions and specific deterrence, the sentencing judge's approach to the prior record was open, and a lesser sentence reflecting special circumstances was warranted.

Jurisdiction
Australia
Judgment Date
24 August 2016
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal From Sentence Passed in the District Court of NSW on 20 March 2015
Outcome
Leave to appeal granted, appeal allowed, District Court sentence quashed, and applicant re-sentenced.
Legal Topics
['appeal Against Sentence' 'special Circumstances' 'non Parole Period' 'supply of Commercial Quantity of Methylamphetamine' 'objective Seriousness' 'specific Deterrence']
['criminal Law' 'sentencing' 'drug Offences'] ['appeal Against Sentence' 'special Circumstances' 'non Parole Period' 'supply of Commercial Quantity of Methylamphetamine' 'objective Seriousness' 'specific Deterrence']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal From Sentence Passed in the District Court of NSW on 20 March 2015

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a sentence that failed to reflect the finding of special circumstances that had been made.' 'Whether, after finding error, the Court should re-sentence the applicant and impose a lesser sentence warranted in law.' "Whether the applicant's prior convictions for driving whilst disqualified should affect the re-sentencing exercise and the application of special circumstances."]

Ratio Decidendi

The sentencing judge erred through oversight or inadvertence by finding special circumstances intended to facilitate the applicant's rehabilitation in the community but then imposing a sentence that maintained the statutory ratio without giving reasons. That failure was a failure to take into account and give effect to a material consideration. On re-sentencing, despite the Crown's submissions about the applicant's prior driving convictions and specific deterrence, the sentencing judge's approach to the prior record was open, and a lesser sentence reflecting special circumstances was warranted.

Court Disposition

Leave to appeal granted, appeal allowed, District Court sentence quashed, and applicant re-sentenced.

Orders

  • ['Grant leave to appeal and allow the appeal;' 'Quash the sentence passed in the District Court on 20 March 2015 and instead sentence the applicant to a term of imprisonment having a non-parole period of 3 years and 4 months commencing on 19 February 2014 and expiring on 18 June 2017 with a balance of term of 1 year...