AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 22 February 2008

KENNEDY, James Anthony v R

[2008] NSWCCA 21

Also reported as (2008) 181 A Crim R 185
Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING OFFENCE PROPERLY CHARACTERISED AS MID RANGE OF SERIOUSNESS CRIMINAL LAW SENTENCING

Citation: Kennedy, James Anthony v R [2008] NSWCCA 21
Court: New South Wales Court of Criminal Appeal
Date: 22 February 2008
Judges: Beazley JA; James J; Kirby J

Background

The applicant, aged 17 at the time of the offence, pleaded guilty to maliciously inflicting grievous bodily harm with intent under s 33 of the Crimes Act 1900, arising from a serious assault on his then de facto partner on 4 October 2005. He suffered from schizophrenia or a similar mental disorder. Approximately three weeks before the assault, his partner left him and took his medication with her.

Without his medication, the applicant became unwell and began experiencing auditory hallucinations, which ultimately culminated in the assault. He provided explanations for not obtaining replacement medication, including the absence of a local doctor and his commitment to caring for his sick father.

At first instance, Woods ADCJ sentenced the applicant to a non-parole period of 4 years with a balance of term of 3 years. The sentencing judge characterised the offence as falling in the "upper level" of objective seriousness and found that the applicant's psychological state was "of his own default" because he had failed to take his medication. The applicant sought leave to appeal on multiple grounds.

  • Whether the sentencing judge erred by impermissibly confining his sentencing discretion when applying the standard non-parole period provisions under ss 54A and 54B of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge was wrong to find that the applicant's psychological state was "of his own default"
  • Whether the sentencing judge failed to take adequate account of the applicant's mental disorder, both in assessing objective seriousness and as a mitigating factor
  • Whether the sentencing judge gave sufficient weight to the applicant's youth
  • Whether the sentence was manifestly excessive

Decision

Error in finding the applicant's psychological status was his own fault

The Court held that the sentencing judge erred in finding the applicant's psychological state was self-induced. The judge had failed to give adequate reasons and, critically, had not examined the circumstances that led the applicant to stop taking his medication. Because those circumstances were not properly examined, the judge could not have reached that conclusion to the required standard of beyond reasonable doubt, which applies to any factual finding adverse to an accused at sentence.

Error in assessing the offence as "upper level" seriousness

The sentencing judge also erred by assessing objective seriousness based solely on the physical nature of the assault, without reference to the applicant's psychiatric condition at the time. The Court confirmed that mental disorder is a relevant consideration when assessing the objective gravity of an offence, not only as a mitigating factor going to moral culpability. Taking all relevant matters into account, the Court classified the offence as falling in the lower part of the mid-range of seriousness, having regard to the wide range of conduct captured by s 33 of the Crimes Act 1900.

Error in the sentencing methodology

The Court also noted, by way of obiter, that the sentencing judge had adopted an impermissible methodology by selecting a starting-point figure and then adding or subtracting factors. This approach wrongly confines the sentencing discretion. The standard non-parole period provisions in Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 are intended to provide a guidepost for comparison, not to mandate an outcome or eliminate the sentencing discretion.

Re-sentencing

Taking into account the correct classification of seriousness, the applicant's mental disorder and its contribution to the offence, his youth (he was not yet 18 at the time), his early guilty plea, his first period of custody, and his prospects for rehabilitation, the Court imposed a total term of 6 years. Special circumstances were found, resulting in a non-parole period of 3 years rather than the standard proportion.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Woods ADCJ on 27 October 2006 quashed
  • Applicant re-sentenced to imprisonment comprising a non-parole period of 3 years from 5 October 2005, expiring 4 October 2008, with a balance of term of 3 years commencing 5 October 2008 and expiring 4 October 2011

Key Takeaways

  • A sentencing court must examine the circumstances surrounding an offender's failure to take psychiatric medication before finding, adversely to the accused, that their resulting mental state was self-induced. Such a finding must be established beyond reasonable doubt.
  • Where a defendant's mental disorder materially contributed to the commission of an offence, that condition is relevant to the assessment of objective seriousness, not merely as a subjective mitigating factor going to moral culpability.
  • The Court of Criminal Appeal confirmed that ss 54A and 54B of the Crimes (Sentencing Procedure) Act 1999 provide a guidepost for comparison rather than a mandatory starting point. Using the standard non-parole period as a fixed number from which to add or subtract is a misapplication of the legislation.
  • Applying The Queen v Olbrich (1999) 199 CLR 270, factual matters adverse to an accused at sentence must be proved beyond reasonable doubt, and a failure to reach that standard vitiates any finding built upon them.
  • Youth, first-time custody, mental disorder, early plea, and prospects for rehabilitation all operated cumulatively to justify a finding of special circumstances and a departure from the standard non-parole period proportion in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 54A, 54B
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Markarian v R [2005] HCA 25; 228 CLR 357
- Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Mulato v R [2006] NSWCCA 282
- R v Marshall [2007] NSWCCA 24
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v Jancescki (No 2) [2005] NSWCCA 288; (2005) 44 MVR 328
- R v Wright (1997) 93 A Crim R 48
- GDP (1991) 53 A Crim R 112