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 parityLegislation 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 207Category: Principal judgment Parties: Raymond Anthony Kennedy (Appellant)
CrownRepresentation: Counsel:
Solicitors:
M Johnston SC & M Fleeton (Appellant)
N Adams (Crown)
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:
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On 20 November 2010 Stanley Bruce Davies was brutally bashed at his Kempsey home. The house was ransacked.
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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…
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- AGLC
- Kennedy v The Queen [2016] NSWCCA 114
- Case
- [2016] NSWCCA 114
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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