Rees, Neil --- "R v Kennedy (Criminal law - bail pending appeal against sentence - sentencing principles)" [1983] AboriginalLawB 32; (1983) 1(9) Aboriginal Law Bulletin 7

• R V Kennedy
• Criminal Law-Bail Pending Appeal Against Sentence-Sentencing Principles.

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R v Kennedy

Criminal law - bail pending appeal against sentence - sentencing principles.

R v Kennedy

Supreme Court of New South Wales at Sydney (Hunt J.)

10 June 1983

Casenote by Neil Rees

The facts of this case are set out in the judgment of Hunt J. He stated –

This is an application by Howard Kennedy for bail pending the hearing of an appeal from the penalty imposed upon him by Mr. Blisset,. S.M. at the Walgett Court of Petty Sessions on June 8.

The applicant pleaded guilty to a number of charges and had fines imposed upon him in relation to each of those charges. Upon the charge of "Serious alarm and affront" he was fined $100 to be paid forthwith. Upon each of two charges of "Resist police in execution of duty" he was fined $200, the first such sum to be paid by June 8 and the second sum to be paid by September 8. Finally, upon a charge of "Refuse to leave licensed premises" he was fined $25, to be paid by November 8.

The magistrate was informed that the applicant was an unemployed labourer, whose only income was a welfare cheque of $128.60 per fortnight; that the applicant lived with his widowed mother and contributed to the upkeep of the household and that he had no previous criminal record. Despite these submissions, the magistrate refused to allow the defendant any further time to pay.

According to Gilbert's Mikado, the "object all sublime" was to let the punishment fit the crime. But the magistrate here appears to have forgotten that the punishment should also fit the criminal. The means of any accused person is a very relevant factor to be considered in assessing the appropriate penalty. What would be easy to pay for some could be a crushing burden to others. It would, in my view, be quite wrong to impose, such a fine upon the latter that it effectively means a gaol sentence, when someone wealthier would be able to pay the fine without difficulty.

The terms imposed by the magistrate in this case are, in my view, at least prima facie manifestly unfair. I say nothing about the amounts of the fines themselves, as I do not have the circumstances of the offences before me, but the prospect of an appeal to the District Court being dismissed is absolutely unthinkable. In my view, the terms imposed by the magistrate were manifestly unfair and the applicant will succeed on his appeal. In those circumstances, bail must be granted pending the hearing of that appeal.

I note the undertaking by counsel for the applicant that an appeal is about to be lodged and, upon that basis, I grant bait subject to the applicant entering into an agreement without security to forfeit a total sum of $100 if he fails to comply with his bail undertaking. Bail may be entered before any Justice.

Mr J. McKenzie of the Aboriginal Legal Service, Sydney appeared for the applicant.