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Court of Criminal Appeal 23 June 2016

Kennedy v R

[2016] NSWCCA 123

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Kennedy v R [2016] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 23 June 2016
Judges: Leeming JA; R A Hulme J; R S Hulme AJ

Background

The applicant, an 18-year-old man, pleaded guilty in the District Court at Port Macquarie to wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years. He was sentenced to 6 years and 6 months' imprisonment with a non-parole period of 3 years and 6 months.

The offence arose from an incident in February 2014. A 15-year-old victim, along with several friends, had taunted the applicant outside his home. The applicant emerged holding a knife, confronted the group, punched the victim, then chased and stabbed him twice: once in the arm and once in the chest. The chest wound was life-threatening, causing a lacerated lung and diaphragm, significant blood loss, and required emergency surgery.

The applicant sought leave to appeal on the basis that the sentence was excessive. His background included significant disadvantage: he was raised primarily by his aunt, experienced a disrupted family environment, left school in Year 6, had a history of being bullied, and had psychological difficulties including depression and an anti-social personality.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offence
  • Whether the applicant's moral culpability was significantly diminished by reason of his background and psychological profile
  • Whether the requirements of general and specific deterrence, and denunciation, were significantly diminished in the circumstances
  • Whether the sentence imposed was manifestly excessive

Decision

Objective seriousness: R A Hulme J found no error in the sentencing judge's conclusion that the offence fell at least at the upper end of the mid-range of objective gravity. The judge had correctly taken into account the provocative conduct by the group, while also recognising that the applicant had deliberately armed himself with a knife before confronting the group, chased a retreating 15-year-old, and inflicted life-threatening injuries. A statement in the sentencing remarks that appeared to refer to the victim dying was identified as an obvious factual slip that did not affect the substance of the judge's assessment.

Moral culpability: R A Hulme J found no error in the sentencing judge's conclusion that moral culpability was not significantly diminished. R S Hulme AJ took a different view on this point, finding that the applicant's disadvantaged background and psychological abnormalities did reduce his moral culpability to a meaningful degree. However, R S Hulme AJ also accepted that the applicant must have appreciated the gravity and consequences of stabbing a 15-year-old in the chest with a 10-centimetre knife blade, a danger that was self-evident.

Deterrence and denunciation: The Court found no error in the sentencing judge's conclusion that the requirements of general deterrence, specific deterrence, and denunciation were not significantly reduced. The applicant's depression and anti-social personality were factors that, in context, also indicated a degree of continuing danger to the community.

Manifest excess: Despite R S Hulme AJ's finding on moral culpability, all three judges agreed the sentence was not manifestly excessive. The sentence of 6 years and 6 months, with a non-parole period of 3 years and 6 months, fell well short of the statutory maximum and the standard non-parole period, and appropriately reflected the plea of guilty and the relevant subjective factors. Applying Kentwell v R, the Court confirmed that even where an appellate judge identifies error, the question is whether resentencing would produce a materially different outcome.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • An obvious factual error or "slip" in sentencing remarks does not necessarily constitute a ground of appellate error, provided the mistake did not infect the overall sentencing assessment.
  • Where a standard non-parole period applies, it functions as a legislative guidepost rather than a rigid benchmark; it must be considered alongside the objective gravity of the offence and all relevant subjective factors.
  • Provocative conduct by a victim or group can be taken into account in assessing an offence's seriousness, but it does not override other factors such as deliberate arming, pursuit of a retreating victim, and the severity of injuries inflicted.
  • Under Kentwell v R, the Court of Criminal Appeal confirmed that identifying error on a ground of appeal does not automatically lead to a different sentence; the question remains whether the sentence actually imposed was within the appropriate range.
  • A disadvantaged background and psychological difficulties can bear on moral culpability, but the sentencing court is entitled to weigh against that reduction an offender's evident awareness of the obvious danger posed by their conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 33(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 44

Cases:
- Kentwell v R [2014] HCA 37; 252 CLR 601
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Baker [2000] NSWCCA 85
- R v Millwood [2012] NSWCCA 2
- R v Wright (1997) 93 A Crim R 48