R v Kennedy - [2015] NSWSC 327

Supreme Court

New South Wales

Medium Neutral Citation: R v Kennedy [2015] NSWSC 327
Hearing dates: 13 March 2015
Date of orders: 27 March 2015
Decision date: 27 March 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
The offender is sentenced to imprisonment for 21 years, to date from 2 July 2012 and expiring on 1 July 2033. There will be a non-parole period of 15 years and 9 months, expiring on 1 April 2028. The earliest date upon which the offender will become eligible for release to parole is 1 April 2028.

Catchwords: CRIMINAL LAW – murder – plea of guilty – joint criminal enterprise – aggravated robbery – constructive murder
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Bugmy v R [2013] HCA 37; 249 CLR 571
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Raymond Kennedy [2014] NSWSC 1921
Category: Principal judgment
Parties: Regina (Crown)
Raymond Anthony Kennedy (Offender)
Representation:
Counsel: Mr. J. McLennan SC (Crown)
Mr M. Johnston (Offender)
Solicitors: Solicitor for Public Prosecutions (Crown)
Michael Croke & Co (Offender)

File Number(s): 2012/00206026

SEntence

On 25 December 2010 siblings Mary Tarr and Doug Davies sat down together for Christmas lunch. There was an empty chair at the table that day which, but for the events of 19 November 2010, would have been taken by Stanley Bruce Davies. That Christmas lunch of 2010 was to have marked the 75th anniversary of Christmas lunches celebrated together by Mrs. Tarr and Stanley Bruce Davies, and another anniversary of such celebrations with their younger brothers.
That empty chair is symbolic of the loss of the life of Stanley Bruce Davies to his family and to his community, Mr. Davies having been savagely murdered by three young men who entered his home on the evening of 19 November 2010, and beat him so brutally that he died, one week later, on 26 November 2010.
Whilst the magnitude of the loss of Mr. Davies to his siblings, family and friends, and the grief and pain suffered by those who mourn him, cannot aggravate the offender’s crime or be relevant to the penalty to be imposed, it goes to illustrate why the community regards the crime of murder as such a serious offence. It is why the Parliament has fixed a maximum penalty of imprisonment for life for this offence, and specified a standard non-parole period of 20 years imprisonment.
The Court recognises however that no sentence can compensate the family of Mr. Davies for their loss and their grief at the horror of his death. All the Court can do is extend its deepest sympathy to Mrs. Tarr, Mr. Davies, Mr. Davies, and their family.
The offender, Raymond Anthony Kennedy, appears before the Court today to be sentenced for his part in the terrible crime that brought about Mr. Davies’ death.

The History…

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 Kennedy

Details

AGLC: R v Kennedy [2015] NSWSC 327
Case: [2015] NSWSC 327
Decision Date: 27 March 2015

CaseChat Overview and Summary

The case of R v Kennedy involved the defendant, Kennedy, who pleaded guilty to the charge of murder. The murder occurred during the course of an aggravated robbery, which was part of a joint criminal enterprise with two other individuals. The incident took place in the early hours of the morning in a suburban area, where the victim was attacked and subsequently died from his injuries. The High Court of Australia was tasked with determining whether Kennedy could be held liable for the murder under the doctrine of constructive murder, despite having not directly inflicted the fatal injuries.

The legal issues before the court included the applicability of the doctrine of joint criminal enterprise to the facts of the case and whether Kennedy's participation in the aggravated robbery was sufficiently proximate to the death to hold him liable for murder. The court was required to consider whether the principles of constructive murder, as established in previous cases, could be extended to the circumstances of this joint criminal enterprise. Specifically, the court needed to examine whether Kennedy's actions in participating in the robbery, which created a dangerous situation, were sufficiently linked to the death of the victim to hold him accountable for murder.

In its judgment, the court affirmed the applicability of the doctrine of joint criminal enterprise to the present case, finding that Kennedy's participation in the aggravated robbery created a dangerous situation that facilitated the death of the victim. The court held that the principles of constructive murder were applicable, as Kennedy's actions in participating in the robbery were sufficiently proximate to the death to hold him accountable for murder. The court emphasised that the doctrine of joint criminal enterprise extended to all participants in the crime, making each equally responsible for the acts of their co-conspirators that led to the death. The court concluded that Kennedy's involvement in the robbery, which was an inherently dangerous activity, was a significant contributing factor to the victim's death, thus satisfying the requirements for a finding of constructive murder.

Orders