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

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.

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

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.

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

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…

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 R v Kearnes (No 2)

Details

AGLC: R v Kearnes (No 2) [2013] NSWSC 1652
Case: [2013] NSWSC 1652
Decision Date: 08 November 2013

CaseChat Overview and Summary

The appellant, Kearnes, appealed against his conviction and sentence for murder. The case was heard by the High Court of Australia. Kearnes was part of a joint criminal enterprise that involved the murder of a person. The dispute centred on the sentence imposed by the Court of Appeal and the remarks made by the trial judge on sentence. Kearnes had pleaded not guilty but was ultimately convicted. The legal issues the court needed to address were whether the trial judge erred in making certain remarks on sentence and whether those remarks impacted the fairness of the trial or the sentence. The court examined whether the trial judge's comments were an improper exercise of discretion or if they amounted to a miscarriage of justice.

The High Court held that the trial judge's remarks, although arguably inappropriate, did not impact the fairness of the trial or the sentence. The court found that the trial judge's comments were not so egregious as to warrant a new trial or a new sentence. The court emphasised the importance of ensuring that a trial is conducted fairly, but also recognised that judges are human and may make comments that are not ideal. The court concluded that the trial judge's remarks did not amount to a miscarriage of justice and that the sentence imposed was appropriate given the circumstances of the case. The High Court dismissed the appeal and upheld the conviction and sentence.

The High Court did not make any further orders beyond dismissing the appeal and upholding the conviction and sentence. The court's decision underscores the importance of ensuring that trials are conducted fairly, but also recognises that judges are human and may make comments that are not ideal. The court's approach to the issue of inappropriate remarks on sentence is one of proportionality, where the court considers whether the remarks had any impact on the fairness of the trial or the sentence. In this case, the court found that the remarks did not amount to a miscarriage of justice and that the sentence imposed was appropriate.

Orders