R v Kehoe and Pemberton

[2000] SASC 119

R  v  KEHOE and PEMBERTON
[2000] SASC 119

Court of Criminal Appeal: Doyle CJ, Mullighan and Bleby JJ

1. DOYLE CJ:       I agree with the orders proposed by Bleby J, and with the reasons that he gives for making those orders.  There is nothing that I wish to add to those reasons.

2. MULLIGHAN J:        I agree that the appeal should be allowed for the reasons given by Bleby J and I agree with the orders which he proposes.

3. BLEBY J:          The appellants are two of five young people who pleaded guilty before a Judge of this Court to the brutal murder of Tracey Muzyk, the murder having taken place on 10 December 1996 at Royal Park.  A sixth person, a girl aged 15 at the time, who participated in some of the events leading to the death, pleaded guilty to and was sentenced for assaulting the deceased and occasioning her actual bodily harm.

4. The offence of murder carries a mandatory life sentence: s 11, Criminal Law Consolidation Act 1935. Nevertheless, the sentencing judge has a discretion as to the setting of a non‑parole period and as to the length of that non‑parole period: s 32(1)(c), s 32(5)(c), Criminal Law (Sentencing) Act 1988.

5. All five defendants guilty of murder were sentenced to life imprisonment commencing on 20 December 1996, the date upon which they were taken into custody.  The two present appellants appeal against the non‑parole periods fixed by the sentencing judge.

6. Because of successful appeals against the fixing of their non‑parole periods by two of the other defendants, it is necessary to make some brief reference to the respective roles of each of the defendants, to the non‑parole periods fixed by the sentencing judge and to the circumstances and result of the earlier appeals.

7. I gratefully adopt from the reasons for judgment in R v Austin and McKenzie (1999) 74 SASR 591; [1999] SASC 498 the description by the Chief Justice of the circumstances in which Tracey Muzyk was killed:

   “Tracey Muzyk was 18 years old when she was murdered.  Her body, which was concealed in a large tree and covered with grass clippings, was found in a paddock on the morning of Saturday 14 December 1996.  Due to the delay of four days between the time of death and the discovery of the body, and consequently the state of the body when it was found, the exact cause of death could not be determined.  The evidence was sufficient to establish that she had suffered blunt head and facial trauma, indicating blows of considerable force, stab wounds in her neck, and neck compression brought about by hanging or strangulation.   Based on the autopsy the probable time of death was the early hours of Tuesday 10 December 1996.

   The incidents which form the basis of the charge of murder commenced on the evening of 9 December 1996 and continued into the early hours of 10 December.  Knowledge of what occurred during this period has been gleaned from admissions made by most…