R v Kearnes (No 2)

[2013] NSWSC 1652

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kearnes (No 2) [2013] NSWSC 1652
Hearing dates:	19 September 2013, 7 November 2013
Decision date:	08 November 2013
Jurisdiction:	Common Law
Before:	Button J
Decision:	Imprisonment for 30 years with a non-parole period of 22 years 6 months
Catchwords:	CRIMINAL LAW - remarks on sentence - plea of not guilty - offender convicted of murder - offender part of a joint criminal enterprise - approach to fact finding - offender with prior criminal convictions - offence of great moral culpability - sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
Category:	Sentence
Parties:	Regina Peter John Kearnes
Representation:	Counsel: W Creasey (Regina) P Williams (offender) Solicitors: Solicitor for Public Prosecutions (Regina) Hemsley and Associates (offender)
File Number(s):	11/315156

Judgment

1. On 2 September 2013, Peter John Kearnes (to whom I shall refer in these remarks as "the offender") was arraigned before a jury panel and me on an indictment averring that, on 21 July 2011 at Wagga Wagga, he murdered Semin Rizvic (to whom I shall refer as "the deceased"). On 19 September 2013, the jury returned a verdict of guilty on that single count. On that same day, and later on 7 November 2013, I received evidence on sentence, and on the latter date the detailed and helpful submissions of both counsel. The culmination of those procedural steps is that the offender comes before court for sentence today.

1. The maximum penalty for the offence of murder in New South Wales is imprisonment for life without the possibility of parole. In the circumstances of this case, there is also an applicable standard non-parole period of 20 years. I have borne those two important guideposts firmly in mind. The Crown Prosecutor has not submitted that this is a case that should lead to the imposition of the maximum penalty.

Fact finding

1. My approach to the determination of the facts of the matter is as follows. Any fact that I regard as adverse to the offender must be proven beyond reasonable doubt. A fact that I regard to be in his favour need be proven on the balance of probabilities only. It may be that the evidence will not permit me to determine some facts with clarity. It is not my role to try to construe the findings of fact that may have underpinned the verdict of the jury. Rather, I must make my own findings, consistent with that verdict: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587.

1. The task of fact finding in this matter is complicated by two factors.

1. The first is that I recently finished presiding in a trial with regard to a co-offender, Mr Paton. Although the offence alleged was identical, the issues and evidence, as one would expect, were different to some degree. With the assistance of counsel, I have put out of my mind all of the evidence tendered in the trial of Mr Paton, and based all of my findings of fact solely on the evidence in the trial and proceedings on sentence of the offender.

1. Secondly, the two most important witnesses in the Crown case in the trial of the offender were Ms Tamsin Cameron and Mr John Holschier. And yet it is agreed between the parties that each of them told at least one significant lie in the witness box. I respectfully accept that proposition. That fact, and my generally adverse assessment of the credibility of both of those witnesses, has led me to approach their assertions with the utmost caution. With regard to many topics, I have simply put their evidence to one side.

Objective features

1. On 20 July 2011, the deceased was living in a modest ground floor Housing Commission flat on a main street of Wagga Wagga. He lived alone, although he did enjoy the companionship of his dog "Jabba". The deceased suffered from a longstanding problem with prohibited drugs. He was also a vulnerable person who was frequently the victim of assaults, robberies, and the like.

1. The deceased had been in an intermittent relationship with the former wife of the offender, Ms Vicki Kearnes. On the afternoon of 20 July 2011, the offender travelled from Tumut to Wagga Wagga and dropped in at a birthday celebration in honour of Ms Vicki Kearnes. There he expressed the belief to Ms Vicki Kearnes that she and the deceased were "still together". She told him, in effect, to mind his own business.

1. In the early evening, the offender travelled by motor vehicle back to his home in Tumut. At that location he was later in the company of his friend, Mr Paton, and Ms Cameron, with whom he had some sort of association. All three were part of the community of users of methylamphetamine in that small country town.

1. In the living room of that home was a shortened .22 calibre rifle. It was in the possession of the offender. So was at least one box of ammunition suitable for use in that firearm.

1. The offender and Mr Paton travelled together in a motor vehicle to the home of an acquaintance, Mr Peter Minogue, who also lived in Tumut. The two of them brought Mr Minogue back to the home of the offender.

1. Thereafter the offender and Mr Paton left those premises, taking with them the firearm and the ammunition. The two men did not leave the Tumut area, however, until some time after 2:30am on 21 July 2011. Before leaving the house, one or other of them asked Ms Cameron to monitor a police scanner that was present in the home. That request was made because at that stage, I am satisfied, the offender and Mr Paton had entered into an agreement that they would travel to Wagga Wagga and murder the deceased.

1. In undertaking that journey, the two men used the Ford Territory belonging to Ms Cameron, even though there was a vehicle belonging to the offender available. The drive to Wagga Wagga from Tumut takes no less than one hour.

1. The offender and the deceased were known to each other, and, although by no means great friends, they were on reasonable terms. Some time shortly before 4am, the deceased, who was alone, permitted entry into his flat to the offender, and perhaps to Mr Paton as well. Thereafter the deceased sat on his couch in a relaxed manner.

1. Almost immediately, either the offender or Mr Paton produced the shortened firearm and shot the deceased to the neck from very close range. That first wound was rapidly fatal, and it is not the case that the deceased suffered for an extended period before his death.

1. Thereafter, three more shots were administered to the head of the deceased. During that process, but after the deceased had expired, in an act both contemptuous and contemptible, the left ear and a portion of the scalp of the deceased were severed from his head. At some later stage it was discarded in the garden of the block of flats like a piece of rubbish.

1. Despite my suspicions, I am not able to be satisfied to the criminal standard that the offender was the shooter. Nor am I satisfied that the offender was the person who mutilated the body of the deceased after the murder. I am satisfied to the requisite degree that the offender was the moving party in the murder, and that Mr Paton was either his assistant in the offender doing those things, or that Mr Paton did them at the instigation of the offender.

1. There can be no question but that the offender intended to kill at the time of the shooting.

1. Afterwards the two men remained in the vicinity of the murder for quite some time. I am unable to determine why they did so.

1. Eventually they travelled to the Tumblong area between Wagga Wagga and Tumut, where by arrangement they met Ms Cameron. At that location they changed cars and clothes and discarded certain items in an effort to hide their crime, before returning to Tumut.

1. Later on 21 July 2011, the offender and Mr Paton decided to absent themselves from Tumut and the South West Slopes of New South Wales generally. They decided to head north together, to Sydney or perhaps further. In an act of incompetence, they caused themselves to be pulled over by the Highway Patrol at Yass. At that time, the driver, Mr Paton, was speeding and not displaying his L plates. The offender was sitting in the passenger seat drunk.

1. Some time later, the offender engaged in a recorded interview with police. He chose to tell many lies on that occasion.

1. There was evidence in the trial that, after the murder, the accused attempted to murder Mr Paton, for fear that he would reveal the truth about the crime to the authorities. There was also evidence that, at a still later time, the offender sought to have Ms Cameron murdered by way of a contract killing. After discussion in the proceedings on sentence, the learned Crown Prosecutor accepted that I should not have regard to those matters as aggravating the murder for which the offender is to be sentenced. Although he did submit that they could be relevant to the prospects of rehabilitation of the offender, he came to the final position that they were not matters about which I could be satisfied beyond reasonable doubt, in light of the lack of credibility of the two witnesses to whom I referred a moment ago. I respectfully agree with that submission, and I have accordingly put the evidence of those allegations to one side.

1. The foregoing recital of the objective features reveals that this murder cannot be characterised as anything other than an extremely grave example of the offence.

Subjective features

1. The offender has maintained his innocence of the offence. He ran a trial, as (of course) he was perfectly entitled to do. Since then, there has been no evidence of acceptance of responsibility on his part in the slightest. Indeed, he recently maintained his innocence to a forensic psychiatrist.

1. Turning to the question of motive, the Crown case at trial was that the offender was upset as a result of his belief that his former wife was still in a relationship with the deceased. It may be that the offender was indeed unhappy about that supposed state of affairs. And yet the relationship between Ms Vicki Kearnes and the deceased had been "on again off again" for years. Furthermore, I do not accept that the interaction between the offender and Ms Vicki Kearnes on the afternoon of 20 July 2011 led him very shortly thereafter to commit this premeditated murder.

1. I suspect that this murder was, in truth, to do with prohibited drugs, or money derived from prohibited drugs. However, in light of the absence of evidence founding that proposition, I do not come to any finding in that regard.

1. In short, I do not consider that I am able to discern with any clarity the motive for the commission of this crime.

1. The evidence of the background of the offender is derived chiefly from a history that he provided to the forensic psychiatrist. There was little oral evidence in support of that history, and there was none from the offender in support of it. As I have indicated, I am satisfied that the offender told the police a number of lies when he was interviewed. It is also the case that he gave evidence (to which I shall return) in the trial that I do not accept as mitigating on the balance of probabilities. For those reasons, I have approached anything said by the offender to the psychiatrist with considerable caution. On reflection, however, I am prepared to accept matters of background on the balance of probabilities.

1. The offender was born 52 years ago in Tasmania. He did not have the good fortune to be born into a happy, loving home. To the contrary, his father had a serious drinking problem. He was regularly violent to the mother of the offender, events that the offender witnessed as a child, as well as to the offender himself and his siblings. On many occasions, the offender adopted the strategy of hiding in order to avoid being subjected to beatings. The family moved around frequently, and the offender attended many different schools. He was suspended and expelled from school on a number of occasions.

1. I do not doubt that that early trauma permanently scarred the personality of the offender, and played a significant role in the subsequent development of his problems with prohibited drugs and alcohol, as well as his serious criminality.

1. From an early age, the offender has been a heavy drinker. He has also used cannabis and amphetamines. He has also, on occasions, abused prescription medication.

1. I accept on the balance of probabilities that, on the evening of 20 July and in the early hours of the morning of 21 July 2011, the offender was affected by a combination of alcohol, amphetamines, and prescription medication. I accept to the same standard that that combination disinhibited him and made him more impetuous and aggressive than he otherwise would have been. And yet all of those effects were very well known to the offender, in light of his years of abuse of drugs and alcohol. In the circumstances, that intoxication cannot operate to mitigate the offence.

1. The psychiatrist who recently saw the offender came to the opinion that he is suffering from a dependence upon alcohol, a substance use disorder with regard to amphetamines and prescription medication, and "maladaptive personality traits". I accept that evidence. And I also accept the opinion of the psychiatrist that at no relevant time has the offender suffered from any significant cognitive impairment, any illness in the nature of psychosis, or any emotional problems such as depression.

1. The offender commenced to offend at the age of 14 years, when he was placed on probation for property offences. His criminal record is thereafter peppered with offences of dishonesty and violence, along with driving offences, many of the latter supportive of the proposition that there has been an ongoing problem with alcohol. Many of those offences are not of the greatest seriousness.

1. There are two exceptions to that. The first is that, in 1982, the offender was sentenced to a head sentence of imprisonment for 6 years with a non-parole period of 2 years for his role in an armed robbery in company. It seems that, with remissions, the offender served about 18 months for that offence.

1. The second is that, in 1993, the offender pleaded guilty in the District Court at Albury to a number of very serious offences arising from the one extended incident. They were one count of armed robbery, two counts of false imprisonment, and one count of sexual intercourse without consent. The agreed facts of that matter were tendered before me. There is no need for me to review them in detail. It suffices to say that the offender engaged in terrifying acts of violence, including sexual violence, whilst disguised and armed with a knife, against a defenceless middle-aged couple. No doubt throughout their extended ordeal each of them was in fear of death. As a result of his pleas of guilty, the offender was convicted and received a total head sentence of imprisonment for 13 years with a total non-parole period of 8 years. It seems that the offender was released in the year 2000, at the end of his non-parole period.

1. In the proceedings on sentence in 1993, a psychiatric report was tendered on behalf of the offender in which it was recorded that the offender gave a history of suffering "alcoholic blackouts" at the time of those offences. An eminent forensic psychiatrist expressed the opinion that that was indeed possible, whilst not actively endorsing it.

1. It is noteworthy that, in the trial conducted before me, the offender gave similar evidence that, at the crucial times before, during and after the murder, he was suffering another blackout, or at least complete amnesia, this time caused by a combination of prescription medication and alcohol.

1. One must seriously doubt the truthfulness of each of those assertions. The amnesia said to have been suffered with regard to the events of 20 and 21 July 2011 was remarkably convenient chronologically. It is also noteworthy that the accused said nothing about such a blackout, or any history of previous blackouts, in the subsequent recorded interview with the police to which I have referred. Furthermore, there is nothing to suggest in the behaviour of the offender, before, during or after the shooting, that he was in any way psychologically or mentally impaired.

1. On the other hand, it can be said that, in 1993, the offender did not rely upon the alleged blackout in exculpation of his crimes (although I infer that it was relied upon in mitigation to some degree). And in 2013, the evidence of the alleged blackout or amnesia in 2011 was hardly likely to aid the offender, in the sense of causing the jury to possess a reasonable doubt about his guilt.

1. At first, I thought that I should approach the recent evidence of the blackout as nothing more than an attempted exculpatory lie, and therefore something adverse to the offender, at the least with regard to his prospects of rehabilitation. But on reflection, I cannot be satisfied of that beyond reasonable doubt. On the other hand, nor do I accept on the balance of probabilities that the offender was suffering from any sort of blackout at any stage relevant to this murder. In the event, I put the evidence with regard to blackouts to one side, and regard it as neither a matter in mitigation or aggravation.

1. Returning to matters of background, some years ago the marriage between the offender and his first wife, Ms Vicki Kearnes, came to an end. They had a number of sons together, and some of them gave evidence in the trial, though not on sentence. I infer that he maintains a good relationship with at least some of his children.

1. Between his release in 2000 and his commission of this murder in 2011, the offender generally (though not completely) stayed out of trouble. During that period, he enjoyed the benefit of a loving relationship with Ms Janelle Kearnes, his second wife. She gave evidence before me on sentence of her continuing love for the offender, the admirable qualities he demonstrated over the decade in which they were together, and in particular his fulfilment of the role of father to her own children. Although their romantic relationship broke up in early 2011 due in part to his abuse of prohibited drugs, she gave impressive evidence of her determination to "stick by him" during the years ahead. It is also the case that the mother and sister of the offender travelled a considerable distance to attend court. No doubt all of that love and support will assist in his rehabilitation.

1. Furthermore, I infer that the offender will be able to use his time in custody in the years ahead constructively. It seems that he has been a worker during his current period of incarceration, and the Crown did not put any evidence of offences against prison discipline before me. It is to be hoped that the offender will be given, and take, the opportunity finally to address the underlying emotional damage that he suffered as a child and adolescent and that has played its part in his abuse of alcohol and prohibited drugs, and the commission of this murder.

1. Finally, when the offender becomes eligible for release, he will by no means be a young man. That fact may operate to reduce his tendency to commit profoundly anti-social acts of violence against other persons.

1. Having said that, in all of the circumstances to which I have referred, one can only be very guarded about the prospects of rehabilitation of Mr Kearnes.

Various matters

1. I do not propose mechanistically to state the aggravating and mitigating features that I have taken into account for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999. Nor do I propose to review the reasons for my departure from the standard non-parole period. In both cases, these remarks on sentence fulfil that role.

1. In light of the maturity and criminal record of the offender, and in particular the inevitable length of any parole period, I do not find special circumstances that could lead to a reduction in the non-parole period.

1. Finally, I am required by recent legislation to inform the offender that, even though I shall impose a determinate sentence, he may be detained after the complete expiry of that sentence, if it is considered that his rehabilitation is insufficient and he remains a danger to the community.

Moral blameworthiness

1. In short, the offender was the instigator of a murder in which a vulnerable and trusting victim was heartlessly shot to death in his own home. The intention was to kill. Thereafter the body was mutilated. The crime was premeditated and included two confederates. It was also brazen, in that it was a shooting committed in an occupied apartment block on a main road of a large regional city. The offender has expressed not the slightest remorse. Despite his damaging upbringing, he does not suffer from any mental illness. The offender has previously been incarcerated for a lengthy period for offences of great cruelty and brutality. In assessing the moral blameworthiness of the offender and his offending as a whole, permit me to use an old-fashioned word and say that the murder of Semin Rizvic was a crime of great wickedness. The criminal justice system must respond with a sentence of appropriate severity.

Imposition of sentence

1. Peter John Kearnes, you are convicted of the offence of murder. I sentence you to a non-parole period of 22 years 6 months to date from 3 October 2011, with a balance of term of 7 years 6 months to date from 3 April 2034 and expire on 2 October 2041. The first date upon which you will be eligible for parole is 2 April 2034.

1. To be clear, the offender is subject to a head sentence of imprisonment for 30 years with a non-parole period of 22 years 6 months.

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Decision last updated: 11 November 2013