Kennedy v R

Court of Criminal Appeal (NSW)|2012-12-11|Before: Simpson J, Fullerton J, Davies J

Judgment 1SIMPSON J: I joined in the orders made on 11 December 2012 for the reasons given by Davies J. 2FULLERTON J: I also joined in the orders made on 11 December 2012 for the reasons given by Davies J. 3DAVIES J: On 11 December 2012 the Court made orders as follows:

Grant leave to appeal.
Appeal allowed.
Quash the sentence imposed by Judge Nicholson SC.
In lieu thereof sentence the Appellant as follows: a. In respect of Count 1, a non-parole period of 18 months to commence 26 May 2011 and expire 25 November 2012 with an additional term of 15 months to expire 25 February 2014. b. In respect of Count 2, imprisonment for a fixed term of 12 months to commence 26 May 2011 and expire 25 May 2012. c. In respect of the section 166 Certificate offence, imprisonment for a fixed term of 15 months to commence 26 May 2011 and expire 25 August 2012.
In respect of Count 1 direct that the Appellant be released on parole immediately on the following condition: That he accept the supervision of the Probation and Parole Service for as long as the Service deems necessary but for a period not less than nine months. 4The following are my reasons for joining in that order. 5The Applicant pleaded guilty to two offences on Court Attendance Notices as follows: Offence 1. Enter dwelling house with intent to commit a serious indictable offence, in circumstances of aggravation (being in company). The maximum penalty is 14 years imprisonment. Offence 2. Robbery in company. The maximum penalty is 20 years imprisonment. 6Additionally, there was an offence on a s 166 certificate of stalk/intimidate another person with intent to cause fear of physical or mental harm. 7On 1 June 2012 he was sentenced by Judge Nicholson SC in the District Court as follows: Offence 1. A non-parole period of 20 months to commence 26 May 2011 and expire 25 January 2013 with an additional term of 16 months to expire 25 May 2014. Offence 2. Imprisonment for a fixed term of 12 months to commence 26 May 2011 and expire 25 May 2012. Section 166 Certificate: imprisonment for a fixed term of 15 months to commence 26 May 2011 and expire 25 August 2012. 8Pursuant to the Crimes (Sentencing Procedure) Act 1999 his Honour set the following conditions on the Applicant's release on parole:

The facts 9The charges against the Applicant all arose from the one incident with the co-offender Andrew Kirby. Although the Applicant and Kirby were sentenced together their counsel were not able to agree on a common statement of facts for the Sentencing Judge. There were two sets of facts, one for each offender, agreed with the Crown in each case. It was necessary for the Sentencing Judge to choose between competing accounts of what happened at the premises. What follows represents either what was agreed as between co-offenders or what the Sentencing Judge found. 10The Applicant and Kirby went to a unit in a complex at Pooley Street, Buranga on 12 May 2011. One of the victims, AB, lived at that unit. On the evening concerned he was present at the unit with a friend of his, ML, the second victim. They were watching movies. 11At about 9:00pm there was a knock on the door. When AB opened the door he saw Kirby's younger brother and a friend of his called Yarrin at the door. Yarrin said to AB "Lock the door, my [sic] brother is coming around." 12At about 9:30pm there was a much louder knock on the door. ML opened the door about half way and the Applicant and Kirby entered the premises. Neither of them was known to AB but ML recognised Kirby. The Applicant locked the door behind himself. Both of them were yelling loudly and abusively. Kirby yelled at them "You have been giving my brother yarndi (marijuana) and alcohol" but AB denied it. 13The Applicant then took a red hooded jumper from a BMX bicycle in the unit and wrapped it around his right hand. With that hand he then picked up a knife from the top of a small storage cabinet next to the couch where AB and ML were sitting. The Applicant stood in front of them with the knife saying "I'm going to kill youse tonight. I will go to gaol for 20 years but I don't care". 14At one point either the Applicant or Kirby said to AB and ML "Give us your money." AB then took two $50 notes from his wallet and handed them over. One or both of them then said "Give us the rest of your money". AB then handed over notes totalling $350. 15Shortly afterwards the Applicant gave Kirby the knife and grabbed a pair of scissors. Thereafter they exchanged weapons on more than one occasion. 16In relation to the use of the knife by each of the Applicant and Kirby the Sentencing Judge found that the Applicant was standing in front of AB and ML when they were in the lounge room. The Applicant was holding the knife in his hand and was thrusting the knife towards ML's chest within a foot of it. ML said the distance varied with each thrust, of which there were more than ten, but mainly within a foot of it. The Applicant was holding it at his waist height, poking it at ML and was yelling "You luck (sic: lucky) we just stab you and leave you lying on the ground bleeding. You don't know how easy it is for us. We're not afraid to do it." 17At the same time ML said that he could see Kirby out of the corner of his eye thrusting the point of the scissors towards AB. However, he was focussed on the knife that the Applicant was thrusting towards him. At one point the Applicant and Kirby changed positions so that Kirby was thrusting the scissors at ML and the Applicant was thrusting the knife at AB. 18Kirby went into the bathroom and demanded that AB and ML go into the bathroom. The Applicant followed them. According to the victims the mood of the Applicant and Kirby kept changing from aggression to calm. At one point in the bathroom Kirby told ML to put his head over the sink but ML refused. At another point Kirby grabbed an electric lead and tried to tie AB's arms with it while the Applicant stood watching holding the scissors. 19His Honour also found that when the parties were in the bathroom Kirby put the knife with the blunt side on the outside skin of ML's throat and that the Applicant was present, ready and willing to support Kirby as he did this in what the Judge described as "cruel torment". 20Things eventually calmed although at about 10:10pm Kirby again became animated when the four of them were back in the lounge room and again demanded to know who had given his brother yarndi and alcohol. Before they left the Applicant said to Kirby "Hand back some money, you can't leave them with no money". Kirby then put a $50 note back on the couch but left with the rest of the money.

Subjective features 21The Applicant was the eldest of four children with the fifth dying at a very early age. His parents separated when he was about five because of domestic violence issues. He left home after his mother had entered into an abusive relationship when he was aged about 13. He resided with his father until he was 18. His father had a recurrent history of alcohol abuse. 22He has had two daughters to separate women. He has made attempts to maintain contact with his daughters but there have been difficulties. 23He told Professor Greenberg, who examined him prior to the sentencing hearing, that he had first been depressed when his brother passed away some ten years ago. He was sent to Mildura Hospital for a three week period and medicated. 24About four years ago he had some paranoid beliefs. At the time he was abusing ecstasy, cannabis and Oxycontin. He appears to have been admitted to a psychiatric hospital for a four week period. He had attempted suicide on three occasions. 25Professor Greenberg diagnosed the Applicant with adjustment disorder with depressed mood, alcohol abuse and poly substance abuse. He said he had low intellectual functioning with some personality problems. 26He was subsequently seen by a psychologist, Mark Howard, who performed psychometric testing. That testing demonstrated that he had a composite IQ ranging between 47 and 61. That was in the lower Extreme range. His scores on the Depression and Anxiety scales were in the Extremely Severe range falling above the 98% percentile of the normative sample. Testing of mood revealed that the Applicant then experienced severe symptoms of depression and anxiety. 27Mr Howard said that the Applicant was very remorseful for his behaviour in the offending. He noted that he had been prescribed Seroquel, a mood stabiliser.

Remarks on sentence 28His Honour dealt with the facts as detailed above and the Applicant's subjective circumstances. When dealing with the matter of the objective criminality of the offending he first considered the question of the form of aggravation charged which was that each was in company. His Honour said that there were other forms of aggravation such as being armed, depriving a person of his liberty and knowledge that there was a person present at the time of entering which were of greater criminality than being in company. His Honour went on to say that in each offender's case the co-offender's role was so aggressively violent towards the victim it went beyond a mere supportive presence to one of actual enforcement of violent conduct. His Honour said that in that sense that feature of aggravation assumed serious weight within the measure of criminality provided in the statute. 29He found that the objective criminality in respect of the intended serious indictable offence (being intimidation) was towards the lower end of objective seriousness. He said that the aggravated feature of the entry was that the offenders remained on the premises for as long as they did and committed the second offence, the robbery. His Honour's only conclusion with regard to objective seriousness was that "the criminality arising from the enter with intent offence is such as to call for fulltime incarceration".

Sentence of the Co-offender Kirby 30At the time of the commission of the index offences Kirby was subject to a s 9 bond by reason of a sentence of 8 months imprisonment being suspended. The sentence had been imposed for an assault occasioning actual bodily harm. 31In respect of the breach of the bond his Honour set a non-parole period of four months to commence on 21 May 2011 and expiring on 20 September 2011 with a balance of term of four months. 32His Honour then sentenced in respect of the index offences. He said that the starting point was four years for both offenders but he would allow a 40% discount for an early plea and for assistance for Kirby. He then imposed the following sentences: Offence 1: A non-parole period of 18 months to commence 21 September 2011 and expire on 20 March 2013 with a balance of term of 11 months; Offence 2: A fixed term of 12 months to commence 20 September 2011 and expiring on 20 September 2012; Section 166 Certificate: A fixed term of 15months to commence 20 September 2011 and expiring on 20 December 2012. 33His Honour imposed the same conditions on Mr Kirby's release on parole as were imposed on the Applicant.

Grounds of appeal 34The Applicant sought leave to appeal on the following grounds:

The learned Sentencing Judge erred by failing to properly give weight to the limited record of the Applicant and to the fact that the Applicant had never served a custodial sentence.
The learned Sentencing Judge erred in imposing a condition upon the Applicant's release to parole without providing procedural fairness to the Applicant by giving his counsel any opportunity to make submissions about such a course and by failing to indicate to the Applicant that such a course was within the contemplation of the Sentencing Judge, before the condition was imposed.
The learned Sentencing Judge erred in his assessment of the Applicant relative to his co-offender, in that he: a. treated both as having indistinguishable records, and b. treated both as having equal culpability notwithstanding the existence of a serious aggravating circumstance existed for Kirby.
The Applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and his co-offender.

Ground 1: The Applicant's criminal record 35His Honour said this in relation to the Applicant's criminal record: Kennedy's first brush with the law appears to have been in 2002 in respect of driving offences whilst he was a child. In 2005 he was before the court for a mid-range PCA (the second one for him) and a driving offence; in 2006 he was convicted for resisting an officer in the execution of duty, possessing a loaded firearm and the firearm being an unregistered firearm. In 2007 he is before the court for high-range PCA and another driving offence; 2008 carried in conveyance; 2010 domestic violence/common assault, 2010 another one. Again his record is not by any means the worst that I have seen. His first custodial sentence was in 2005. 36The recitation of the Applicant's record was wrong in a number of respects. First, and in the Applicant's favour, he first came before a court in 1998 on three occasions for three different offences. Secondly, there was only one conviction for driving with a mid-range PCA. The first reference to it was on an occasion when the Applicant did not appear at Court and a warrant was issued for his arrest. Thirdly, in 2010 there were not two charges of common assault involving domestic violence. Again, the first occasion that offence is mentioned the Applicant did not appear in Court and a warrant was issued. Finally, and most significantly, the Applicant had never been sentenced to imprisonment before the offences now under consideration. 37All of these mistakes except the first were against the Applicant's position. The Crown submitted, nevertheless, that the Sentencing Judge did not suggest that he was taking the Applicant's criminal history into account as an aggravating factor or on the basis of the principles in Veen v The Queen (No. 2) (1987) 164 CLR 465 at 473. On that basis it is suggested that the ground is not made out. 38The ground of appeal is poorly worded because according of weight to one factor or another is peculiarly within the discretion of the Sentencing Judge. Nevertheless, the fact that the Sentencing Judge made specific errors in relation to the Applicant's criminal history, particularly the misstatement about prior custody, demonstrates error on his part. The matter was regarded as of some significance by the Sentencing judge because of the use he made of the Applicant's criminal record when considering parity between the offenders. This will be dealt with in relation to Grounds 3 and 4. 39This ground is made out.

Ground 2: Imposing the rehabilitation condition 40The transcript of the sentencing proceedings show that at no time did his Honour alert the Applicant's counsel to the fact that he was considering imposing this condition. During his Remarks on Sentence his Honour noted that the co-offender Kirby was willing to attend full-time rehabilitation and his Honour said at that point: So please remind me when I announce these sentences that there is a rehab condition. 41It is clear, however, that his Honour was dealing with the co-offender Kirby at that point. The Crown does not contest that the rehabilitation order ought to be quashed. 42It is unfortunate that, when his Honour asked counsel if there was anything else having imposed the sentences and the rehabilitation condition, the Applicant's counsel did not say anything concerning the rehabilitation condition.

Grounds 3 and 4: Parity 43In dealing with the parity issue his Honour said this: [92] I find the culpability of both offenders as being about the same. Both had criminal histories but not sufficiently different to distinguish one from the other. Both had childhoods marred by domestic violence, alcohol issues, poor parenting issues and generally the social consequences of displacement shared with others including their parents through the history of Aboriginal displacement by the dominant white society and its values. [93] The only distinctions between them are the greater discount to be given to Kirby for assistance given and the difference in commencement date of the sentences. A further distinction is that Kirby must answer for the s 12 breach on his suspended sentence. (emphasis added) 44The Applicant does not challenge the determination by the Sentencing Judge that the roles of each offender in the actual offences committed were similar. The Applicant was right not to do so. 45However, in relation to the criminal histories of the two offenders the position was far different from his Honour's assessment of the position. First, and as noted earlier in relation to Ground 1, the Applicant had never served time in custody. Secondly, the Applicant's prior criminal history consisted of the following: (a) Driving offences including a mid-range and a high-range PCA; (b) Resist officer, possess a loaded firearm, possess an unauthorised firearm, use an unregistered firearm - all of these offences were dealt with by a 12 month section 9 bond; (c) Be carried in a conveyance taken without the consent of the owner. This was dealt with by a two year section 9 bond; (d) Two offences of common assault, one involving domestic violence and four offences of behave in an offensive manner or use offensive language, two of which were committed when he was 14 years of age. 46On the other hand, Kirby had been sentenced to prison on five separate occasions for offences including common assault, contravene ADVO's, have custody of an offensive implement, failing to appear, larceny and assault occasioning actual bodily harm. In relation to the last offence that imprisonment of eight months was suspended on entry into a section 12 bond. Kirby was subject to that suspended sentence at the time of commission of the index offences. The last matter was an aggravating factor. 47The Crown submitted that the Applicant did not have a justifiable sense of grievance because Mr Kirby's sentence was reduced by reason of his assistance and because the aggravating factor of being on conditional liberty when the offences were committed was dealt with by his Honour wholly accumulating the sentences imposed on Mr Kirby on the expiry of the non-parole period for the time he was ordered to serve for breach of that suspended sentence. In that regard the Crown submitted that increasing Mr Kirby's sentence by reason of being on conditional liberty would risk double counting. 48In my opinion, by reason of the considerable difference in the criminal histories of the offenders and by reason of the fact that the index offences were committed whilst Mr Kirby was on conditional liberty, the Applicant has a justifiable sense of grievance for his Honour having chosen the same starting point for each of the offenders. In circumstances where his Honour only required the Applicant to serve half of the period of the suspended sentence for its breach any fear of double counting by selecting a different starting point before Mr Kirby are allayed. 49As Dawson and Gaudron JJ said in Postiglione v R (1997) 189 CLR 295 at 303: [I]t is convenient to observe, once again, that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence... . See also the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]. 50In my opinion this ground is made out.

Re-sentence 51Error has been shown in the three respects mentioned. It is necessary, therefore for this court to re-sentence the Applicant unless it is considered that no lesser sentence is warranted. The Crown submitted that no lesser sentence was warranted due to the leniency of making the offenders' sentences for the offences entirely concurrent when a separate element of criminality was involved in the robbery offence. 52In my opinion the sentence imposed on Kirby was not so lenient or inadequate that it would be inappropriate to exercise the discretion in the Applicant's favour to reduce his sentence if there is proper reason to do so. I note what is said in that regard in Green at [33]. 53The significant difference in the criminal histories of the co-offenders together with the fact that the offender Kirby was on conditional liberty at the time of the commission of the offences justifies a different starting point for the two offenders. In my opinion that starting point should have been three years and eight months compared to the four year starting point his Honour reached for Mr Kirby. 54With a 25% discount for an early plea the total term is 33 months. Maintaining the ratio his Honour adopted of 55% between the non-parole period and the head sentence, the appropriate non-parole period in respect of Count 1 is 18 months with an additional term of 15 months. I would not disturb the sentences imposed in respect of Count 2 and the section 166 certificate offence. The condition to enter full-time rehabilitation should be quashed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2013

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