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District Court 17 November 2020

Kenny v R

[2020] NSWDC 800

Domestic & family violencePublic order & justice offences
CRIME APPEAL AGAINST SEVERITY OF SENTENCE APPELLANT SOUGHT CRO LAST BREACH OF ADVO SERIOUS APPEAL DISMISSED.

Citation: Kenny v R [2020] NSWDC 800
Court: District Court of New South Wales
Date: 17 November 2020
Judge: Neilson DCJ

Background

The appellant was subject to an Apprehended Domestic Violence Order (ADVO) protecting his former partner from contact, approach, and associated threatening behaviour. Despite the ADVO being in place, he accumulated multiple charges arising from a series of incidents between January and August 2020. Those incidents included attending the protected person's property while heavily intoxicated, travelling to her holiday accommodation and engaging in frightening and erratic behaviour in the presence of her young children, and sending a sustained series of unsolicited text messages and calls over several days in July and August 2020.

Earlier proceedings in the Local Court at Tweed Heads had resulted in the charges being conditionally dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990, with a treatment plan requiring the appellant to attend psychological therapy and an alcohol program. The appellant had a documented history of alcohol abuse, mental health difficulties, and a pattern of relationship breakdown and reconciliation with the protected person.

The most recent four charges, arising from the July and August 2020 contact, came before Dunlevy LCM at Tweed Heads on 18 August 2020. The magistrate imposed a Community Corrections Order (CCO) for 18 months on each charge, with a requirement of supervision by Community Corrections at Tweed Heads. The appellant appealed that sentence to the District Court, seeking substitution of a Conditional Release Order (CRO) instead.

  • Whether the Local Court's imposition of CCOs with supervision was excessive in the circumstances, and whether CROs should have been imposed instead
  • Whether the appellant's mental health difficulties and engagement with a treatment plan warranted a less punitive outcome
  • Whether the CCOs with community corrections supervision were appropriate to the appellant's circumstances and the nature of the offending

Decision

Neilson DCJ dismissed the appeal and upheld the CCOs imposed by the magistrate. His Honour found that the appellant clearly required external assistance to comply with his legal obligations, and that supervision by Community Corrections was well placed to provide that assistance. The history of the matter demonstrated that even when the appellant was engaging with a mental health treatment plan, he still breached the ADVO and relapsed into alcohol use.

His Honour concluded that the CCO with supervision served the interests of both the appellant and the protected person. Without that structure, the risk of further relapse and further breaches remained real. The supervisory framework offered by the CCO was therefore not only a proportionate response but a practically useful one.

His Honour also found that, in particular having regard to the conduct on 13 August 2020, a CRO would not adequately reflect the criminality involved. On that date, the appellant made an unsolicited and threatening telephone call to the protected person, who described being "absolutely petrified," followed hours later by a message that distorted reality by casting himself as the victim of her interference. That conduct was described by His Honour as "continued bizarre behaviour."

Orders Made

• Appeal dismissed
• Community corrections order for 18 months maintained (four charges of breaching the ADVO)

Key Takeaways

  • In dismissing the appeal, the District Court confirmed that a CCO with Community Corrections supervision was appropriate where an offender's history demonstrated an inability to comply with legal obligations without structured external support.
  • A CRO will not be a sufficient sentencing outcome where the criminality of the most recent breach is serious enough to warrant a more significant response, even where the offender has engaged with mental health treatment.
  • The court's reasoning treated the supervisory element of the CCO as serving a protective and rehabilitative purpose for both the offender and the victim, not simply as a punitive measure.
  • Engagement with a mental health treatment plan and partial compliance with prior orders does not automatically warrant the lightest available sentencing disposition if subsequent offending reflects ongoing risk.
  • Under s 32 of the Mental Health (Forensic Provisions) Act 1990, charges can be conditionally dismissed with a treatment plan; however, where an offender reoffends despite such orders, courts may treat that history as a factor weighing against a lenient sentence on the later charges.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases:
- No cases were cited in the judgment.