R v Kennedy [2000] QCA 48

Court of Appeal (Qld)|2000-02-28|Before: Murdo P, Pincus JA, Williams J

The applicant is 32 years of age and has an extensive criminal history for dishonesty dating back to 1985. He also has convictions for traffic, street and minor drug offences. He rightly points out that he has no prior convictions for actual violence. I note, however, that a number of recent convictions involve weapons and of particular concern is a conviction in the Darwin Supreme Court of 19 October 1992 for committing a dangerous act whilst aggravated under the influence of alcohol and discharging a firearm, for which he was sentenced to two years' imprisonment to be released after serving six months on a good behaviour bond for two years.

An aggravating factor in this case is that the applicant took vigilante action against an older and smaller man who had not been dealt with according to law and he committed these actions in the course of what is nowadays commonly referred to as a home invasion.

These comparable sentences demonstrate that the sentence imposed in this case was certainly well within the appropriate sentencing range. In Demittis this Court noted that it is not the law that citizens may take the law into their own hands or, indeed, anything but the proper processes of the law should be gone through before a person is dealt with for criminal offence. Vigilante enterprises of this kind are simply not tolerated by the community.

Despite the fact that the applicant showed no remorse and does not have the benefit of an early plea of guilty nor the benefit of youth or a lack of prior convictions, the learned sentencing Judge in this case recognised the applicant's personal circumstances and the needs of his de facto wife by recommending that the applicant be eligible for release on parole after serving 12 months of the sentence.

In all the circumstances it cannot be said that the sentence imposed was manifestly excessive or, in any way, outside the proper sentencing range. I would refuse the application for leave to appeal against sentence.

PINCUS JA: I agree that the application should be refused. The applicant presents in Court as a person who seems gentle enough but he did not behave gently on this occasion. He is a mature man who got into another person's house and (in company with another) there assaulted him causing serious injury. There is a plea of not guilty and there is a criminal history, although only one previous sentence of imprisonment.

In these circumstances I agree that the sentence was a proper one and that the application should be refused.

WILLIAMS J: I agree with what has been said by each of the other members of the Court.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.

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