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Court of Criminal Appeal 7 October 2022

Kennedy v R

[2022] NSWCCA 215

Assault & violenceDomestic & family violence

Citation: Kennedy v R [2022] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 7 October 2022
Judge(s): Garling J, Adamson J (primary reasons), N Adams J (additional remarks)

Background

The appellant was convicted after a judge-alone trial of detaining a person without consent with intent to obtain an advantage and occasion actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 20 years' imprisonment. Williams DCJ in the District Court at Dubbo sentenced the appellant to 7 years' imprisonment with a non-parole period of 3 years and 8 months, having found special circumstances and adjusted the statutory ratio accordingly.

The offending concerned a prolonged episode of domestic violence against the appellant's intimate partner of approximately 14 years, in breach of an existing Apprehended Domestic Violence Order. Over the course of roughly nine hours, the appellant detained the victim, repeatedly punched and struck her with a piece of timber, threatened to kill her, broke two of her ribs, and drove her to a remote location before police ultimately intervened.

The appellant sought leave to appeal his sentence on three live grounds: that the sentencing judge improperly confined consideration of Bugmy and Fernando factors to the special circumstances finding; that the judge failed to treat the absence of planning as a mitigating factor; and that the sentence commencement date contained a calculation error. The Crown conceded the third ground.

  • Whether the sentencing judge erred by limiting consideration of Bugmy and Fernando factors (relating to the relevance of an offender's deprived background to sentence) solely to the finding of special circumstances, rather than applying them more broadly to the sentencing exercise.
  • Whether the sentencing judge erred by failing to identify the absence of planning as a mitigating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentence commencement date contained a calculation error requiring correction.

Decision

Ground 2: Bugmy and Fernando factors
The Court found no error. Reading the sentencing judge's reasons as a whole, the Bugmy and Fernando factors (which address how childhood deprivation and disadvantage bear on an offender's moral culpability and the weight given to general deterrence) had been properly considered. The sentencing judge's reference to Munda v State of Western Australia (2013) 249 CLR 600 explained why those factors did not, in the circumstances, reduce the significance of general deterrence. The Court emphasised the principle from Munda that Bugmy factors must be balanced against the obligation to vindicate the dignity of victims of domestic violence, so that victims are not treated as less worthy of protection because their assailant suffered childhood deprivation. N Adams J noted that, having regard to the objective seriousness of the offending, the maximum penalty, the contested trial, and the appellant's extensive criminal history, the sentencing judge had in fact significantly ameliorated the sentence on account of his deprived childhood.

Ground 3: Lack of planning as a mitigating factor
The Court dismissed this ground. Whether the absence of planning operates as a mitigating factor is not automatic and depends on the nature of the offending. The Court observed that many domestic violence offences lack premeditation, with the offending here characterised by irrational jealousy driven by insecurity. To treat a lack of planning as necessarily mitigating, without regard to the character of the offending, would be erroneous. No error was demonstrated in the sentencing judge's failure to identify this as a mitigating factor.

Ground 4: Calculation error
The Crown conceded, and the Court accepted, that the sentence commencement date had been incorrectly recorded as 27 April 2019 when it should have been 23 April 2019, accounting for pre-sentence custody. Because the error was purely one of calculation, the Court corrected the commencement date without proceeding to resentence, consistent with the approach in Kentwell v The Queen (2014) 252 CLR 601 and Lehn v R (2016) 93 NSWLR 205.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed to correct the commencement date of the sentence.
  • Sentence of 7 years' imprisonment imposed, commencing 23 April 2019 and expiring 22 April 2026, with a non-parole period of 3 years and 8 months commencing 23 April 2019 and expiring 22 December 2022.
  • First eligibility for release on parole: 22 December 2022.

Key Takeaways

  • Sentencing reasons must be read as a whole: a failure to expressly articulate Bugmy and Fernando factors at every stage of the sentencing exercise does not constitute error if the reasons, considered holistically, demonstrate those factors were taken into account.
  • Under Munda, the application of Bugmy principles in domestic violence cases requires courts to balance the offender's background of deprivation against the court's obligation to vindicate victims' dignity, ensuring that victims of domestic violence are not treated as less deserving of protection or denunciation.
  • Absence of planning is not an automatic mitigating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Its weight depends on the nature of the offending, and in domestic violence cases characterised by impulsive, jealousy-driven conduct, its absence may carry no mitigatory value.
  • Where an appeal succeeds only on a ground of arithmetical error in the calculation of a commencement date, the Court of Criminal Appeal will correct the date without undertaking a full resentencing exercise, consistent with the approach in Kentwell and Lehn.
  • No error was established in the substantive sentence of 7 years imposed for a serious domestic violence detention offence found to fall at the upper end of the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Fernando (1992) 76 A Crim R 58
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- Cohen v R [2011] NSWCCA 165
- Fuller v R [2022] NSWCCA 203
- R v Hopkinson; R v Robertson [2022] NSWCCA 80