Kennedy v R

1. [1]

   GARLING J: I agree with the orders proposed by Adamson J and with her Honour’s reasons. I also agree with the additional remarks of N Adams J.

2. [2]

   ADAMSON J: Robert Kennedy (the applicant) seeks leave to appeal against the sentence imposed on him by Williams DCJ in the District Court at Dubbo on 21 June 2021 of 7 years’ imprisonment with a non-parole period of 3 years and 8 months’ imprisonment. The sentence was imposed after he was convicted at trial (by Williams DCJ as judge alone) for 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). The person detained was Larissa Peckham, the applicant’s then intimate partner (the victim). The maximum penalty for the offence is 20 years’ imprisonment. There is no standard non-parole period.

3. [3]

   Her Honour found special circumstances and altered the statutory ratio between the non-parole period and the total term of imprisonment from 75% (s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act)) to 52.3%.

4. [4]

   The grounds of appeal in respect of which leave is sought are as follows:

5. [5]

   The applicant sought leave to amend the notice of appeal to add the fourth ground in the course of the hearing of the leave application. The Crown did not oppose leave being granted in respect of the additional ground and accepted that the sentencing judge had made a slip in the calculation which could be corrected by this Court.

6. [6]

   As Williams DCJ was the trial judge and as the applicant was tried by judge alone, the facts of the offending conduct were contained in her Honour’s reasons for finding the applicant guilty, which were replicated in the remarks on sentence.

The proceedings on sentence

1. [7]

   At the proceedings on sentence, the Crown tendered the victim impact statement of the victim as well as the applicant’s criminal and custodial histories. The Crown also handed up a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), which sought that a breach of an Apprehended Violence Order (AVO) (comprised by the offending conduct) also be taken into account on sentence as a related offence.

2. [8]

   The applicant’s counsel tendered, relevantly, a report of Dr Sathish Dayalan, forensic psychiatrist dated 22 January 2020 and two character references. There was no oral evidence at the sentence hearing.

3. [9]

   Both the Crown and the applicant’s counsel relied on written submissions which were augmented by oral submissions.

4. [10]

   The applicant’s counsel submitted that the objective seriousness of the offending was “no higher than midrange” notwithstanding that the period of detention was 9 hours and 20 minutes. He submitted that the acts of violence perpetrated against the complainant were “not sustained” and were “sporadic” and that the conduct was not planned and did not involve the use of a weapon (other than a stick which he found on Third Island, an isolated place where he had taken the victim). The applicant’s counsel relied on the circumstance that although the applicant had committed domestic violence offences against the victim in the course of their 14-year relationship, none of the previous offences was a “serious personal violence offence”.

5. [11]

   The applicant’s counsel relied on the report of Dr Dayalan and noted the applicant’s drug and alcohol history as well as his personal and family history. He described the applicant as a 30-year old Aboriginal man from a background of extreme disadvantage who told Dr Dayalan that he had a “chaotic childhood”; his parents were poor; and his father had mental health issues (schizophrenia, and alcohol and cannabis abuse). He submitted that the applicant had witnessed domestic violence from a young age and began to spend more time away from home. He abused drugs and alcohol from a young age. He was also sexually abused while in the juvenile justice system (in respect of which he is claiming damages in civil proceedings). The applicant’s counsel also referred to the death of the applicant’s brother, Lyle, who was only 16 years old, which caused the applicant’s mental state to deteriorate. This occurred shortly before the offending conduct. He submitted that the applicant had insight into the offending.

6. [12]

   The Crown submitted that the applicant’s purpose in detaining the victim was to “humiliate and degrade”. He submitted that when the applicant’s jealousy was triggered, he exerted control and dominance over the victim by taking her phone and her car keys, making her afraid and humiliating her so that she was left in no doubt that he was in control. The Crown submitted that the objective seriousness of the offence was above mid-range. The Crown submitted that the offence was a significant escalation of the applicant’s prior offending and that the weight to be given to both specific and general deterrence was high.

7. [13]

   The Crown submitted that although the applicant’s childhood may have been deprived, he continued to have a level of support from his parents and had contact with both of them on the day of the offence.

8. [14]

   At the conclusion of the sentence hearing on 20 May 2021, her Honour reserved her decision and listed the matter for sentence on 21 June 2021.

The remarks on sentence

1. [15]

   A summary of her Honour’s findings relating to the offending conduct is as follows.

2. [16]

   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.

3. [17]

   On the morning of 27 February 2019, the applicant and the victim went to Coonamble to buy cigarettes, following which they went to the applicant’s father’s unit (where the applicant was living at the time). As soon as they arrived at the unit, the applicant demanded the victim’s phone. When she handed it to him, he demanded to know where the “app” was and the PIN to the app. When the victim indicated that she did not know what he was talking about, he hit her on her jaw. She began to cry and asked him to stop because she wanted to leave. He pushed her onto the bed. She told him that she was scared and wanted to go. The applicant kept searching the victim’s phone and kept hold of her car keys so that she could not leave.

4. [18]

   The applicant punched the victim in the head and then held up an ignited cigarette and said, “If you don’t start telling me the truth about the app, the day isn’t going to end well. I’ll burn your eyes out with my cigarette.” The victim continued to beg him to let her go.

5. [19]

   The victim’s sister dropped the young son of the applicant and the victim at the unit so that he could use the toilet. Afterwards, the applicant drove the victim’s car, in which the victim and their son were passengers, to return their son to the victim’s sister. On the way, the police pulled over the car. The victim was so scared for her safety and that of her son that she did not say anything to police.

6. [20]

   After dropping off their son, the applicant and the victim returned to his father’s 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, he 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”. She continued to beg to be released. He responded, “Get the fuck out of the car, you slut.” He hit her head again and pulled her out of the car onto the ground. He kicked her with such force that the impact broke two of her ribs. He threatened to kill her.

7. [21]

   The applicant saw a length of timber nearby and went to pick it up. He returned and struck her on the head with the stick. He picked her up from the ground, held her by the throat and said, “I swear on my kids and Lyle [his late brother], I am going to kill you.” The victim was so scared that she wet herself. She told him what she had done. He let go of her throat and drove her back to his father’s house. He said, “Today is not going to end well. Just tell me the truth.” He slapped her on her right cheek. They went inside his father’s unit.

8. [22]

   The applicant continued to make demands regarding the app on the victim’s phone. He approached her again and punched her lowered head and her left hand. The applicant noticed that other family members had left the unit and expressed concern that one of them would call police. He directed her to change her clothes (as she had wet herself). He and the victim left the unit through the bedroom window. The applicant drove the victim in her car to her sister’s place to collect their son.

9. [23]

   In the meantime, the applicant’s father had called Triple-0. At 6.04pm the police pulled over the applicant’s car. 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. Police asked her to get out of the car. The applicant attempted to drive the vehicle but it stalled. The victim got out of the car with her son. The applicant was arrested.

10. [24]

    When the police asked the victim what had happened, she answered, “He went crazy.” She showed them her injuries. The victim asked police who had called them because she wanted to thank whoever had done so.

11. [25]

    The period during which the victim was detained was from about 8.40am until 6pm.

12. [26]

    The sentencing judge summarised the victim’s statement. The remarks on sentence included the following:

13. [27]

    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:

14. [28]

    Her Honour summarised the effect of these events on the applicant and the connection between his circumstances and the offending as follows:

15. [29]

    The sentencing judge noted the applicant’s submission that the conduct was not planned and did not form part of any organised criminal activity.

16. [30]

    Her Honour recorded the applicant’s submissions that his childhood disadvantage led to “depression, anxiety, suicidal thoughts, sexual abuse, drug and alcohol abuse and anger management issues” which, “coupled with jealousy and insecurity” led to the offending.

17. [31]

    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.

18. [32]

    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.”

19. [33]

    Her Honour said further:

20. [34]

    Her Honour assessed the objective seriousness of the offending conduct as “the upper end of the mid-range” and noted:

21. [35]

    The sentencing judge found that the offending stopped only because the applicant’s father called the police.

The grounds of appeal

1. [36]

   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.

2. [37]

   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.

3. [38]

   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.

4. [39]

   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.

5. [40]

   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.

6. [41]

   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.

7. [42]

   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.

8. [43]

   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).

9. [44]

   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]:

10. [45]

    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.

11. [46]

    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.

12. [47]

    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.

13. [48]

    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.

14. [49]

    Whether such a factor mitigates or aggravates the offence, or neither, depends on the circumstances of the offending.

15. [50]

    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.

16. [51]

    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.

17. [52]

    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]:

18. [53]

    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.

19. [54]

    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.

20. [55]

    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.

21. [56]

    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

1. [57]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal to correct the commencement date of the sentence.

   3. (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. (4)

      The applicant will first be eligible for release on parole on 22 December 2022.

2. [58]

   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.