Kennedy v R [2010] NSWCCA 260

Kennedy v R [2010] NSWCCA 260

The sentencing judge erred by failing to apply the R v Fernando principles to the applicant's social disadvantage and alcohol abuse, and in treating the series of offences as an aggravating feature under s 21A(2)(m) in relation to individual counts. The aggregate sentence imposed exceeded the permissible range under the totality principle. The applicant should be re-sentenced by reducing the extent of accumulation, resulting in an aggregate sentence of 9 years with a non-parole period of 6 years.

Jurisdiction
Australia
Judgment Date
17 November 2010
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Re Sentencing
Outcome
Appeal allowed; applicant re-sentenced.
Legal Topics
['sentencing' 'aggravated Break, Enter and Steal' 'recruitment of Child for Criminal Activity' 'money Laundering' 'application of R V Fernando Principles' 'aggravating and Mitigating Factors' 'totality Principle']
['criminal Law'] ['sentencing' 'aggravated Break, Enter and Steal' 'recruitment of Child for Criminal Activity' 'money Laundering' 'application of R V Fernando Principles' 'aggravating and Mitigating Factors' 'totality Principle']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence; Re Sentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred in not applying the principles in R v Fernando' 'Whether s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 was wrongly applied as an aggravating factor' 'Whether the judge failed to give effect to the finding of special circumstances under s 44 of the Sentencing Procedure Act' 'Whether the sentences or overall sentence were manifestly excessive']

Ratio Decidendi

The sentencing judge erred by failing to apply the R v Fernando principles to the applicant's social disadvantage and alcohol abuse, and in treating the series of offences as an aggravating feature under s 21A(2)(m) in relation to individual counts. The aggregate sentence imposed exceeded the permissible range under the totality principle. The applicant should be re-sentenced by reducing the extent of accumulation, resulting in an aggregate sentence of 9 years with a non-parole period of 6 years.

Court Disposition

Appeal allowed; applicant re-sentenced.

Orders

  • ['The applicant is re-sentenced as follows:' 'Count 1: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2008 and expiring on 14 January 2011 with a balance of term of 9 months expiring on 14 October 2011.' 'Count 2: Imprisonment for a fixed term of 2 years commencing on 15...