Kennedy v R [2022] NSWCCA 215

Kennedy v R [2022] NSWCCA 215

Read fairly as a whole, the sentencing judge's reasons showed that the applicant's childhood deprivation and Bugmy and Fernando factors were considered in relation to the offending, general deterrence, specific deterrence, rehabilitation, risk of reoffending and special circumstances, and were not confined to special circumstances. The absence of planning did not have to be treated as mitigating in the circumstances of this domestic violence offence, which was characterised by irrational jealousy, control, detention, assaults and threats. The conceded calculation error in the commencement date required correction, but no further re-sentencing exercise.

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed to correct the commencement date of the sentence; sentence set aside and reimposed with the corrected commencement date.
Legal Topics
['appeal Against Sentence' 'domestic Violence Offending' 'detaining a Person Without Consent With Intent to Obtain an Advantage and Occasion Actual Bodily Harm' 'bugmy Factors' 'fernando Factors' 'special Circumstances' 'lack of Planning as a Mitigating Factor' 'correction of Sentence Commencement Date']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'domestic Violence Offending' 'detaining a Person Without Consent With Intent to Obtain an Advantage and Occasion Actual Bodily Harm' 'bugmy Factors' 'fernando Factors' 'special Circumstances' 'lack of Planning as a Mitigating Factor' 'correction of Sentence Commencement Date']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by limiting consideration of Bugmy and Fernando factors to the finding of special circumstances.' 'Whether the sentencing judge failed to take into account that the offence was not planned.' 'Whether the sentencing judge erred in calculating the commencement date of the sentence.']

Ratio Decidendi

Read fairly as a whole, the sentencing judge's reasons showed that the applicant's childhood deprivation and Bugmy and Fernando factors were considered in relation to the offending, general deterrence, specific deterrence, rehabilitation, risk of reoffending and special circumstances, and were not confined to special circumstances. The absence of planning did not have to be treated as mitigating in the circumstances of this domestic violence offence, which was characterised by irrational jealousy, control, detention, assaults and threats. The conceded calculation error in the commencement date required correction, but no further re-sentencing exercise.

Court Disposition

Leave to appeal granted; appeal allowed to correct the commencement date of the sentence; sentence set aside and reimposed with the corrected commencement date.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal to correct the commencement date of the sentence.' "Set aside the sentence imposed by Williams DCJ on 21 June 2021 and, in lieu thereof, impose a sentence of 7 years imprisonment commencing on 23 April 2019 and expiring on 22 April 2026 with a non-parole period of 3 years...