Kennedy v R [2022] NSWCCA 215

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kennedy v R [2022] NSWCCA 215 Hearing dates: 26 September 2022 Decision date: 07 October 2022 Before: Garling J at [1]; Adamson J at [2]; N Adams J at [58] Decision: (1) Grant leave to appeal. (2) Allow the appeal to correct the commencement date of the sentence. (3) Set aside the sentence imposed by Williams DCJ on 21 June 2021 and, in lieu thereof, impose a sentence of 7 years imprisonment commencing on 23 April 2019 and expiring on 22 April 2026 with a non-parole period of 3 years and 8 months' imprisonment commencing on 23 April 2019 and expiring on 22 December 2022. (4) The applicant will first be eligible for release on parole on 22 December 2022. Catchwords: CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in limiting consideration of Bugmy and Fernando factors to special circumstances finding — where no such error demonstrated having regard to reasons as a whole CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in not finding that lack of planning was a mitigating factor — domestic violence offence — where no error shown CRIME — Appeals — Appeal against sentence — Re-sentence — calculation error for commencement date of sentence Legislation Cited: Crimes Act 1900 (NSW), s 86 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44 Criminal Procedure Act 1986 (NSW), s 166 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cohen v R [2011] NSWCCA 165 Fuller v R [2022] NSWCCA 203 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 R v Fernando (1992) 76 A Crim R 58 R v Hopkinson; R v Robertson [2022] NSWCCA 80 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Category: Principal judgment Parties: Robert Dwayne Kennedy (Applicant) Rex (Respondent) Representation: Counsel: T Ramrakha (Applicant) D Scully (Respondent)