Kendall v R [2015] NSWCCA 13

Kendall v R [2015] NSWCCA 13

Although the sentencing judge made factual errors by stating that the applicant appeared to have punched the victim and by referring to parole rather than bail, those errors were immaterial. The offender was on conditional liberty, the offences involved a forced entry into an elderly vulnerable victim's home, sexual assault, physical injuries and significant effects on the victim, and the objective seriousness assessment was open. The aggregate sentence of 6 years non-parole with an additional term of 3 years was not unreasonable or plainly unjust.

Jurisdiction
Australia
Judgment Date
23 February 2015
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal granted; appeal against sentence dismissed.
Legal Topics
['break Enter and Commit Serious Indictable Offence' 'indecent Assault' 'intentionally Inflict Actual Bodily Harm With Intent to Have Sexual Intercourse' 'objective Seriousness' 'manifest Excess' 'conditional Liberty' 'aggregate Sentence']
['criminal Law' 'sentencing'] ['break Enter and Commit Serious Indictable Offence' 'indecent Assault' 'intentionally Inflict Actual Bodily Harm With Intent to Have Sexual Intercourse' 'objective Seriousness' 'manifest Excess' 'conditional Liberty' 'aggregate Sentence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the offending as near the highest level of offending behaviour.' 'Whether factual misstatements, including that the applicant punched the victim and was on parole, disclosed sentencing error.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

Although the sentencing judge made factual errors by stating that the applicant appeared to have punched the victim and by referring to parole rather than bail, those errors were immaterial. The offender was on conditional liberty, the offences involved a forced entry into an elderly vulnerable victim's home, sexual assault, physical injuries and significant effects on the victim, and the objective seriousness assessment was open. The aggregate sentence of 6 years non-parole with an additional term of 3 years was not unreasonable or plainly unjust.

Court Disposition

Leave to appeal granted; appeal against sentence dismissed.

Orders

  • ['Leave to appeal granted.' 'The appeal is dismissed.']