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R v Kennedy

R v Kennedy

Case [2013] NSWSC 1940 20 December 2013

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kennedy [2013] NSWSC 1940
Hearing dates: 23 July, 30 July, 30 August, 20 September, 12 December, 13 December and 17 December 2013
Decision date: 20 December 2013
Before: Bellew J
Decision:
1The offender is convicted.
2The offender is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 4 December 2013 and ending on 3 June 2031, with an additional term of 5 years and 10 months imprisonment, commencing on 4 June 2031 and ending on 3 April 2037, a total sentence of 23 years and 4 months imprisonment.
3The offender will be eligible for parole on 4 June 2031.
4The total sentence will expire on 3 April 2037.

Catchwords: CRIMINAL LAW - Murder - Sentence following late plea of guilty - Where offender heavily intoxicated at the time of the offending - Whether offending aggravated by the fact that it took place in the home shared by the offender and the victim - Whether a finding of special circumstances warranted
Legislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bellchambers v R [2008] NSWCA 235
DS v R [2012] NSWCCA 159
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Hasan v R [2010] VSCA 352; (2010) 31 VR 28
Ingham v R [2011] NSWCCA 88
Markarian v R (2005) 228 CLR 357
Montero v R [2013] NSWCCA 214
Muldrock v R (2011) 244 CLR 120
PK v R [2012] NSWCCA 263
R v BIP [2011] NSWCCA 224
R v Carter [2003] NSWCCA 243
R v Comert [2004] NSWCCA 125
R v Dong [2010] NSWSC 1242
R v Engert (1995) 84 A Crim R 67
R v Fidow [2004] NSWCCA 172
R v Goundar [2010] NSWSC 1170
R v GWM [2012] NSWCCA 240
R v Hearne (2001) 124 A Crim R 451
R v Previtera (1997) 94 A Crim R 76
R v Rosenberger (1994) 76 A Crim R 1
Category: Principal judgment
Parties: Regina - Crown
Adam John Kennedy - Offender
Representation: Counsel:
Ms J Baly SC - Crown
Mr M Ramage QC - Offender
Solicitors:
Director of Public Prosecutions NSW - Crown
Michael Croke - Offender

File Number(s): 2012/142513
Publication restriction: Nil

Judgment

On 30 July 2013 Adam John Kennedy ("the offender") pleaded guilty to the murder, on 3 May 2012, of Debara Martin ("the deceased"). The offender's trial had been listed to commence on 12 August 2013.

I heard evidence and submissions from the parties on 12, 13 and 17 December 2013.

THE APPLICABLE MAXIMUM PENALTY

The maximum penalty for the offence of murder is one of life imprisonment (see Crimes Act 1900 NSW S. 19A). A standard non-parole period of 20 years is prescribed for that offence pursuant to s. 54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act").

Section 61(1) of the Sentencing Act mandates the imposition of a life sentence for murder if…

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 [2013] NSWSC 1940
Case: [2013] NSWSC 1940
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case of R v Kennedy involved the respondent, Kennedy, who was convicted of murder. The respondent had killed his partner, and the case came before the High Court of Australia. The primary issue was the sentence to be imposed on Kennedy following his late plea of guilty, particularly considering the intoxication he experienced at the time of the offence, and whether the fact that the crime occurred in a shared home constituted an aggravating factor. Additionally, the court had to determine if the circumstances warranted a finding of special circumstances, which could influence the sentencing.

The legal questions before the court included the extent to which intoxication should mitigate the sentence, and whether the shared residence with the victim added to the gravity of the offence. The court had to balance these factors against the heinous nature of the crime, which was a premeditated killing. The court also needed to consider the principles of sentencing in murder cases, including the need to protect society and to provide deterrence, while also taking into account the offender's capacity to understand and control his actions due to intoxication.

The court concluded that the intoxication significantly impaired Kennedy's ability to form intent, which was a mitigating factor in sentencing. However, the shared residence with the victim and the nature of the crime as premeditated were considered aggravating factors. The court found that the overall circumstances did not warrant a finding of special circumstances, as they did not rise to a level that would significantly differentiate this case from others. Consequently, the court determined an appropriate sentence that reflected both the mitigating and aggravating factors, ensuring it served the dual purposes of punishment and deterrence.

Orders