Kennedy v R [2022] NSWCCA 215 | Case summary

Court of Criminal Appeal (NSW)|2022-09-26|Before: Garling J, Adamson J, Adams J

The applicant's subjective circumstances

In the remarks on sentence, her Honour noted that the applicant was 30 and had two children, aged 10 and 8. Prior to his arrest, he was living with his father. Her Honour outlined his background as follows: "With respect to the psychiatric history, Dr Dayalan reports that the offender described a chaotic home environment in his childhood. There were 11 children to his parents' union and they struggled with poverty. They struggled to put food on the table and clothes on the children's backs. The offender told Dr Dayalan that the children had to share clothes and beds. The offender's father suffered from schizophrenia and abused alcohol and cannabis. His mother, too, had problems with alcohol. His parents argued a lot and the offender witnessed domestic violence. When he was 14 he confronted his father when he saw the his father had assaulted his mother. As he got older, he started spending more time away from home to avoid the chaos at home, and fights between his parents. He had been subject to negative peer influence and began smoking cannabis from the age of 12. He also engaged in criminal behaviour from an early age which resulted in repeated incarcerations. Whilst detained in a juvenile justice centre, he was sexually assaulted by one of the officers over a period of two to three weeks. The offender blamed himself for the sexual assault, albeit he was only a child himself. He had not disclosed that sexual assault to anyone until recently because of his sense of guilt and shame associated with that abuse. He had received counselling for that in which he was told that the abuse was not his fault, and he was, accordingly, trying to reframe his interpretation of that traumatic experience. Dr Dayalan reports that the offender relayed a history of depressive and anxiety symptoms intermittently since childhood. He had admitted to serious contemplation of suicide since the age of 15 after the sexual abuse upon him. He had bought some rope with the intent to hang himself when he was 19. The offender had continued to ruminate about the sexual assault into his adulthood and admitted to increasing problems with anger management. When he was 22 he realised he could no longer function due to his mental health symptoms and consulted a psychologist. He benefited from sessions and continued to use mindfulness exercises that he had learnt. He has also been prescribed antidepressant medications, mirtazapine, which he had continued to use for a few years with a good result. Two years prior to the authorship of this report, the offender's younger brother, Lyle, had died from a motor vehicle accident. His brother was only 16 years of age. That incident and the loss of Lyle had understandably caused the offender and his family members a lot of distress. His mental health significantly deteriorated following Lyle's death and his ruminations about past traumatic events increased."

Other relevant matters addressed in the remarks on sentence

Her Honour was satisfied that the applicant's use of the stick to assault the victim aggravated the offending but that the presence of a child did not (as their son was present for only a short period of the offending). Although her Honour considered that it would have been open to her to find that the fact that the offending occurred in the applicant's father's house, where the victim stayed for some periods, aggravated the offending, her Honour did not find it to be an aggravating factor as it had not been raised as such.
When addressing general deterrence, her Honour referred to Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (Munda) as authority for the proposition that sentencing for domestic violence must take general deterrence into account in a "significant way". Her Honour also found that there was a real need for specific deterrence "given the fact that this is not an isolated occasion of offending upon the same victim."
Her Honour said further: "With respect to special circumstances, there are a number of issues that have formed the Court's view with respect to a finding of special circumstances. I am well aware that the offender is a young, indigenous man. When he returns to the community from custody, I am of the view he will need significant support to help his integration into the community. I am of the view that there is a well-established need for him to have support with his mental health issues, particularly borne out of his drug and alcohol dependencies which are both long standing. There is also, in my view, a significant need to have assistance with grief management and bereavement management given the unresolved grief for the loss of Lyle. I am also of the view that he needs significant counselling with respect to help him address the sexual assault that he suffered at the Riverina Juvenile Justice Centre. I am also of the view that he needs assistance to address the longstanding drug issues preferably by way of residential rehabilitation. I am also of the view that the offender needs assistance to establish vocational skills to help him achieve the goals that Mr Jones and Mr Rutherford speak to me that the offender holds. I am also of the view that Bugmy issues and Fernando type issues are established to a significant degree." [Emphasis added.]
Her Honour assessed the objective seriousness of the offending conduct as "the upper end of the mid-range" and noted: "I have no doubt that the taking of the victim to Third Island was also done to further scare her and remove her from any possible source of help."
The sentencing judge found that the offending stopped only because the applicant's father called the police.

Ground 2: alleged error in confining consideration of Bugmy and Fernando issues to special circumstances

Before addressing this ground, it is necessary to define what is meant by "Bugmy [referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37] and Fernando [referring to R v Fernando (1992) 76 A Crim R 58] issues" in order to assess to what extent they were taken into account other than in relation to special circumstances.
In Bugmy, the High Court held that the effects of an offender's profound childhood deprivation do not lessen with time and should be given full weight when sentencing the offender. The Court also held that those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case. In R v Fernando, which was approved in Bugmy, this Court relevantly held that social disadvantage is relevant to sentencing in several respects.
The applicant's principal submission in support of ground 2 is that her Honour erroneously confined her consideration of Bugmy factors to the finding of special circumstances when these factors were relevant to the sentence as a whole and not merely to the ratio between the non-parole period and the total term. He relied on the position of the highlighted sentence referring to "Bugmy issues and Fernando type issues" to show that these factors were only taken into account in the context of special circumstances.
The Crown accepted that Bugmy issues were centrally engaged in the present case because the applicant's childhood deprivation had contributed to the offending and therefore warranted some reduction in the applicant's moral culpability. The Crown submitted that the highlighted finding (in the passage extracted above) was a stand-alone finding which applied generally to the sentencing exercise. Further, it submitted that Bugmy issues were addressed comprehensively in the reasons and were taken into account in several respects, as indicated by her Honour's reasons.
I have extensively extracted passages from the remarks on sentence above to demonstrate the extent to which her Honour took into account Bugmy issues when sentencing the offender. Her Honour found a causal connection between the applicant's deprived childhood and the offending conduct. Her Honour also referred to Munda, which bears on general deterrence.
In Munda, the appellant was sentenced for the manslaughter of his de facto spouse, who died from a traumatic brain injury occasioned by his punching her and ramming her head against a wall after an argument. The sentencing judge took into account in mitigation the appellant's subjective circumstances, including that he was indigenous and had been exposed to alcohol abuse and family violence since childhood. The Western Australian Court of Appeal found the sentence to be manifestly inadequate but dismissed the appeal as it was not persuaded that the residual discretion to intervene ought be exercised. On appeal to the High Court, the appellant argued that the Western Australian Court of Appeal had failed to give proper regard to Mr Munda's antecedents and personal circumstances. The High Court by majority (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) upheld the decision of the Western Australian Court of Appeal and held that, although an offender's circumstances of severe social disadvantage were relevant, the same sentencing principles must be applied in every case irrespective of an offender's identity or membership of an ethnic or other group.
The sentencing judge's reference to Munda was sufficient to explain why although, in some cases, Bugmy factors may lessen the significance of general deterrence, they did not have that effect in the present case. I consider that her Honour's reasons, when read fairly as a whole, indicate that her Honour took into account the applicant's childhood deprivation in a number of respects: in the finding that it contributed to the offending conduct and when addressing general deterrence, specific deterrence, the need for rehabilitation, the risk of re-offending and special circumstances. Indeed, the remarks are redolent with references to the applicant's childhood deprivation and the problems it has caused him in adult life.
It is implicit in the applicant's submission that, had Bugmy factors been taken into account on, say, general deterrence, the sentencing judge would have regarded general deterrence as of lesser weight. However, this proposition cannot be made out. Although childhood deprivation may lead to a reduction in moral culpability and may make the offender an unsuitable vehicle for general deterrence, it will not necessarily do so. As is apparent from Munda, it is important that Bugmy factors do not mitigate a sentence such that victims of domestic violence at the hands of offenders who themselves have suffered from childhood deprivation are treated as less worthy of protection or that crimes against them warrant less denunciation. General deterrence is not merely aimed at signalling to potential offenders that if they commit the crime, they will suffer the penalty imposed on the index offender, with a view to deterring such offences (a potentially dubious proposition for so-called crimes of passion, as addressed in the passage extracted below from Munda at [54]). It has another dimension - to maintain public confidence in the administration of justice: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [82] (McHugh J).
This second aspect of general deterrence may have particular importance when sentencing for offences with respect to domestic violence, as explained by the majority in Munda at [54]-[55]: "54 It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community. 55 A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."
Thus, although the sentencing judge plainly found that the applicant had suffered significant childhood deprivation which had contributed to the offending, her Honour nonetheless found that both general and specific deterrence were entitled to significant weight.
For these reasons, I am persuaded that her Honour has taken into account Bugmy and Fernando factors in several ways in arriving at the sentence which was imposed. Her Honour's consideration of the relevance of these matters was not confined to special circumstances. Ground 2 has not been made out.

Ground 3: alleged failure to take into account that the offence was not planned

It was argued on behalf of the applicant that, although her Honour noted his submission at the sentence hearing that the offending was not planned, her Honour did not expressly address the submission or make a finding as to whether it was or was not planned. Thus, the applicant argued, he did not know (and this Court could not know) from the reasons whether his lack of planning had been taken into account as a mitigating factor or not.
The relevance of the matters listed in s 21A(2) of the Act as aggravating and s 21A(3) of the Act as mitigating depends on the circumstances of the offending. Further, it is noteworthy that s 21A(2)(n) provides that it is an aggravating factor that "the offence was part of a planned or organised criminal activity", whereas s 21A(3)(b) provides that it is mitigating that "the offence was not part of a planned or organised criminal activity". Because aggravating factors must be proved beyond reasonable doubt and mitigating factors need only be proved on the balance of probabilities (Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)), there will be cases where a Court cannot be satisfied to the requisite standard that an offence was planned or not.
Whether such a factor mitigates or aggravates the offence, or neither, depends on the circumstances of the offending.
In the present case, there was no suggestion that the onset of the detention was other than spontaneous and impulsive. It was obviously a case where there was no planning. It appears that something triggered the applicant's jealousy and he reacted by taking the victim's phone and car keys and assaulting her, all the while interrogating her about an "app". The only element of "planning" which the sentencing judge found was that the applicant had taken the victim to Third Island because it was remote. This was not taken into account as an aggravating factor as it had not been contended for as such by the Crown.
As is apparent from the detailed factual findings in the remarks on sentence, her Honour was well aware of how the offending started (without warning, as far as the victim was concerned) and how it ended (by reason of the apprehension of the applicant whose father had called the police). The lack of planning at the outset may be accepted but it is difficult to see how it could mitigate an offence which was typified by irrational jealousy brought about by insecurity and manifested by the taking of control, unlawful detention and physical assault of the victim and his threats to kill her. Indeed, the passage set out from Munda at [54] indicates that it is typical of offences of domestic violence committed by persons such as the applicant that they are not "premeditated". Thus, lack of planning in this context is of negligible, if any, significance.
Further, to regard lack of planning as necessarily mitigating and planning as necessarily aggravating is erroneous. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22]: "Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple."
In the present case, the lack of planning, at least at the outset, was not necessarily mitigating, although a positive finding of planning (for example, had the applicant left a knife at Third Island in advance of taking the victim there) would have aggravated the offending. The subparagraphs in s 21A(2) and (3) of the Act are not to be applied in a formulaic or artificial way: R v Hopkinson; R v Robertson [2022] NSWCCA 80 at [2] (Leeming JA) and [111] (Rothman J). There are some cases in which a lack of planning will be mitigating and others where it will not be.
The applicant's childhood deprivation tended to make him volatile and spontaneously aggressive in his responses. This did not make his lack of planning mitigating in the circumstances of the present case. While it would have been preferable for her Honour to have addressed the applicant's submission that the lack of planning mitigated the offence, this was a matter of little or no moment given the course of the offending conduct, as described in her Honour's detailed reasons: for another example of a case where the omission to address a submission did not lead to the ground being made out, see Cohen v R [2011] NSWCCA 165 at [52] (Simpson J, Allsop P and Buddin J agreeing). I am not persuaded that ground 3 has been made out.

Ground 4: conceded error in calculation of commencement date

It was common ground that, due to a slight error in calculation, her Honour ordered that the sentence commence on 27 April 2019 when it ought to have been back-dated (having regard to periods of pre-sentence custody) to 23 April 2019. This ground has been made out.
It was accepted that, as ground 4 concerned only an error of calculation, if it were the only ground made out, this Court ought correct the commencement date but not otherwise proceed to re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ); Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] (Bathurst CJ, Beazley P agreeing), [125] (R A Hulme J), [129] (Schmidt J) and [141]-[142] (Wilson J); Fuller v R [2022] NSWCCA 203 at [69]-[70] (N Adams J, Brereton JA and Adamson J agreeing).

Proposed orders

For the reasons given above, I propose the following orders: 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.
N ADAMS J: I agree with the orders proposed by Adamson J for the reasons provided. As the High Court observed in Munda, the application of the Bugmy principles in domestic violence matters requires the court to balance those factors against the court's obligation to vindicate the dignity of victims of such violence. In the present matter, having regard to factors such as the maximum penalty of 20 years imprisonment, the finding of objective seriousness as "the upper end of the mid-range", that the sentencing followed a trial (rather than a plea of guilty) and the applicant's extensive criminal history I am well satisfied that the sentencing judge significantly ameliorated the sentence on account of the applicant's deprived childhood.

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HEADNOTE [This headnote is not to be read as part of the judgment] Robert Kennedy (the applicant) was convicted at trial by Williams DCJ, sitting as judge alone, of a single count of detaining a person without their consent with intent to obtain an advantage and occasion actual bodily harm contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). On 21 June 2021, Williams DCJ sentenced the applicant to a term of imprisonment of 7 years with a non-parole period of 3 years and 8 months. The facts of the offending can be briefly summarised as follows. The applicant and the victim had been in an intimate relationship, with some gaps, for about 14 years. There was an Apprehended Domestic Violence Order in favour of the victim. On the morning of 27 February 2019, the applicant and victim went to the applicant's father's unit (where the applicant was living at the time). As soon as they arrived, the applicant demanded the victim's phone, asking where the "app" was and asking for the PIN to the app. When the victim said she did not know what he was talking about, the applicant hit her on the jaw. The victim began to cry and asked him to stop and told him she was scared and wanted to leave. The applicant kept searching the victim's phone and kept her car keys so that she could not leave. The applicant then punched the victim in the head and threatened to burn her eyes with a lit cigarette. The victim continued to beg him to let her go. Later, the victim's sister dropped the young son of the applicant and the victim at the unit so he could use the toilet. Afterwards, the applicant drove the victim and their son in the victim's car to the victim's sister to drop off their son. During this trip, the police pulled over the car but the victim, being scared for her safety, did not say anything to police. After returning to the unit, the applicant punched the victim's right arm repeatedly. He clenched his fists and said "if you tell me the truth I'll let you go. Get in the car". When the victim said that she did not want to go, the applicant pushed her out of the unit and into the car. He drove her across a river to an area called "Third Island" where he demanded that she tell him "the truth". The victim begged to be released, to which the applicant responded, "Get the fuck out of the car, you slut" and hit her head again. He pulled her out of the car and kicked her, breaking two of her ribs. He threatened to kill her. The applicant found a length of timber nearby and used it to strike the victim on her head. He then picked her up, held her by the neck, and threatened to kill her. The victim was so scared that she wet herself. They then drove back to the unit where the applicant continued to make demands regarding the app on the victim's phone. He then punched her lowered head and her left hand. The applicant told the victim to change clothes and then drove them to the victim's sister's place to collect their son. In the meantime, the applicant's father had called police. On the drive to the victim's sister's place, police pulled over the applicant. An officer asked them whether they had had "any dramas" to which the applicant answered, "Nah, mate, nah." The victim began to cry and nodded her head, which led the officer to ask her to get out of the car. The applicant attempted to drive but it stalled. The applicant was then arrested. The total period of the victim's detention was from about 8.40am until 6pm. The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on three grounds: first, that the sentencing judge erred in confining consideration of Bugmy and Fernando issues to special circumstances; second, that the sentencing judge failed to take into account that the offence was not planned; and third, that there was an error in the calculation of the commencement date of the sentence. The error identified in the third ground was conceded by the Crown. The Court held (Adamson J, Garling and N Adams JJ agreeing), granting leave to appeal against sentence and allowing the appeal to correct the commencement date of the sentence: (1) The sentencing judge's reasons read as a whole showed that Bugmy and Fernando factors were considered. The sentencing judge's reference to Munda explained why the circumstances of the present case did not warrant Bugmy factors reducing the significance of general deterrence. It is important that Bugmy factors do not mitigate a sentence such that victims of domestic violence at the hands of offenders who themselves suffered from childhood deprivation are treated as less worthy of protection or that crimes against them warrant less denunciation: [40], [42]-[43] (Adamson J); [1] (Garling J); [58] (N Adams J). Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 applied; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 discussed; R v Fernando (1992) 76 A Crim R 58 discussed. (2) Whether a factor such as any element of planning mitigates or aggravates the offence depends on the circumstances of the offending. The offending conduct in this case was typified by irrational jealousy brought about by insecurity. As is typical with many domestic violence offences, there was no premeditation. To regard lack of planning as necessarily mitigating without considering the nature of the offending is erroneous. The present case did not warrant a finding that the lack of planning was a mitigating factor: [49], [51]-[53] (Adamson J); [1] (Garling J); [58] (N Adams J). Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 considered. (3) The Crown conceded that the sentencing judge made a slight error in calculating the commencement date of the sentence. Given the error was only one of calculation, this Court ought correct the commencement date but not otherwise proceed to re-sentence [55]-[56] (Adamson J); [1] (Garling J); [58] (N Adams J). Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 applied.

Kennedy v R

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