R v Kennedy[2000] QCA 48

COURT OF APPEAL

McMURDO P

PINCUS JA

WILLIAMS J

CA No 355 of 1999

THE QUEEN

v.

KENNEDY, Brett Anthony Applicant

BRISBANE

DATE 28/02/2000

JUDGMENT

THE PRESIDENT:  The applicant originally appealed against his conviction but he has, this morning, abandoned that appeal and now solely applies for leave to appeal against his sentence.

He was convicted in the Brisbane District Court after a trial on one count of entering a dwelling house with intent with circumstances of aggravation and one count of grievous bodily harm.  He was sentenced to three years' imprisonment in respect of the grievous bodily harm and 12 months' imprisonment in respect of the entering the dwelling with intent with circumstances of aggravation with a recommendation that he be considered for parole after serving 12 months.

His main complaint is that the sentence does not recognise the fact that he has no prior convictions for violence nor does it sufficiently take into account his personal circumstances.  His de facto wife who is in poor health has the sole care of their one year old child and his child aged three from an earlier relationship.  He hopes to be released from prison so that he can assist her in the heavy physical work involved in looking after the children.

The facts of these offences are serious.  At 6.00 a.m. on 12 September 1998 the appellant, accompanied by a second unknown person, knocked on the door of the complainant's home.  When he opened the door the appellant pushed his way in and grabbed the complainant by the shirt front demanding to know the presence of Janelle, the complainant's niece and an ex defacto of the applicant.

The complainant and applicant were well known to each other and throughout the course of the incident the applicant demanded to know where Janelle was.  The applicant grabbed the complainant by the collar of his shirt and struck him in the face two or three times causing him to bleed around the mouth and under the eye.

The complainant was an older and smaller man than the applicant.  The complainant suffered damage to the orbital floor of his left eye resulting in double vision and requiring surgical intervention to repair it, without which the applicant would have been left with permanent double vision.

The Crown case was that the applicant had, in the past, complained to the Department of Family Services about the complainant alleging molestation by the complainant of the daughter of Janelle, the applicant's ex de facto wife.

The Crown case is that the applicant acted as a vigilante and committed this attack upon the complainant as revenge for interfering with Janelle's daughter.

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.

A number of comparable sentences have been placed before this Court by the applicant including McBride 48 of 1995 delivered 5/4/95, Demittis 122 of 1997 delivered 29/5/97, Anderson 434 of 1995 delivered 1/2/96, Williamson 392 of 1996 delivered 1/11/96, McCrea and Robbins 272 and 291 of 1994 delivered 5/10/94, and Brelsford 301 of 1995 delivered 14/9/1995.

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.