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Kennedy v The Queen

Kennedy v The Queen

Case [2016] NSWCCA 114 15 June 2016

Criminal Liability

Joint Criminal Enterprise

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kennedy v R [2016] NSWCCA 114
Hearing dates: 24 March 2016
Date of orders: 15 June 2016
Decision date: 15 June 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [1]
Davies J at [1]
Decision:
(1) Appeal against conviction dismissed.
(2) Leave to withdraw plea of guilty refused.
(3) Grant leave to appeal against sentence.
(4) Quash the sentence imposed by Wilson J on 27 March 2015.
(5) In lieu, sentence the Appellant to a non-parole period of 15 years imprisonment commencing 2 July 2012 and expiring 1 July 2027 with a balance of term of 5 years expiring 1 July 2032.

Catchwords: CRIMINAL LAW – murder – constructive murder – robbery – victim killed during robbery - joint criminal enterprise – plea of guilty – application to withdraw plea – refusal by primary judge to permit withdrawal of plea – principles – challenges to factual findings of primary judge – whether plea attributable to a genuine consciousness of guilt – whether issuable question about guilt
CRIMINAL LAW - sentence – appellant was not the person who killed the victim - challenge to primary judge’s reliance on evidence of appellant’s knowledge of intention to rob – whether evidence that appellant assaulted victim – no evidence to justify primary judge’s finding – need to re-sentence – whether lesser sentence warranted – considerations of parity
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Khamis v R [2014] NSWCCA 152
Lowe v The Queen (1984) 154 CLR 606
McAuliffe v The Queen (1995) 183 CLR 108
Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37
R v Kennedy [2015] NSWSC 327
R v Meissner (1995) 184 CLR 132
R v O’Donoghue (1988) 34 A Crim R 397
R v Penisini; R v Lagi; R v Taufahema [2003] NSWSC 892
R v Raymond Kennedy [2014] NSWSC 1921
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Rotner v R [2011] NSWCCA 207
Category: Principal judgment
Parties: Raymond Anthony Kennedy (Appellant)
Crown
Representation:
Counsel:
M Johnston SC & M Fleeton (Appellant)
N Adams (Crown)
Solicitors:
Michael Croke & Co (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/206026
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law - Criminal

Citation:

R v Raymond Kennedy [2014] NSWSC 1921
R v Kennedy [2015] NSWSC 327

Date of Decision:

27 March 2015

Before:

Wilson J

File Number(s):

2012/206026

Judgment OF THE COURT:

On 20 November 2010 Stanley Bruce Davies was brutally bashed at his Kempsey home. The house was ransacked.
Mr Davies was not found until the following afternoon. He was taken by ambulance to Kempsey hospital and thereafter taken by air to the John Hunter Hospital in Newcastle. He had extensive and irretrievable brain injuries consistent with multiple blows…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kennedy v The Queen

Details

AGLC: Kennedy v The Queen [2016] NSWCCA 114
Case: [2016] NSWCCA 114
Decision Date: 15 June 2016

CaseChat Overview and Summary

In the case of Kennedy v The Queen, the appellant stood accused of the murder of a victim during a robbery. The case was heard in the High Court of Australia, which reviewed the decision made by a primary judge who had refused the appellant's application to withdraw a plea of guilty to constructive murder and robbery. The legal issues revolved around the principles guiding the withdrawal of a guilty plea, the correctness of the primary judge's factual findings, and the fairness of the sentence imposed. The High Court examined whether the plea was attributable to a genuine consciousness of guilt and whether there was an issuable question about the appellant's guilt.

The court assessed the reasoning of the primary judge, who had considered the evidence and concluded that the plea was attributable to a genuine consciousness of guilt. The High Court found that the primary judge's refusal to permit the withdrawal of the plea was justified, as the evidence supported the view that the plea was indeed a genuine acceptance of responsibility. The court also evaluated the sentence imposed on the appellant, who was not the person who killed the victim. The primary judge had relied on evidence of the appellant's knowledge of the intention to rob, but the High Court found that there was no evidence to justify this finding. Consequently, the court determined that the sentence needed to be reconsidered, taking into account the appellant's role in the crime and the need for parity in sentencing.

The High Court concluded that a lesser sentence was warranted, given the appellant's lesser involvement in the crime. The court considered the principles of parity and the specific circumstances of the case, including the appellant's role and the evidence presented. The final orders of the court involved re-sentencing the appellant, ensuring that the sentence reflected the appropriate level of culpability for the crime committed. The High Court's decision underscored the importance of a fair and accurate assessment of guilt and sentencing in criminal cases.

Orders