Regina v Kenning - [2003] NSWSC 84

CITATION: Regina v Kenning [2003] NSWSC 84

HEARING DATE(S): 05/02/03, 06/02/03, 17/02/03

JUDGMENT DATE:
20 February 2003

JUDGMENT OF: Whealy J at 1

DECISION: Albert Edward Kenning, in relation to the charge of murder, I sentence you to a head term of imprisonment of 21 years and 3 months. The sentence is to commence from 13 April 2001. I set a non-parole period of 16 years to expire on 12 April 2017. The date you will be eligible for parole is 12 April 2017; In relation to the conviction for the charge that you did assault David Karl Juhnke thereby occasioning him acctual bodily harm. I sentence you to a fixed term of imprisonment of 6 months to date from today's date. This sentence is to be served concurrently with the sentence in relation to the murder conviction.

CATCHWORDS: Plea to murder charge - Please to charge of occasioning actual bodily harm

LEGISLATION CITED: Crimes (Sentencing Procedure Act 1990

CASES CITED: Regina v Previtera (1997) 94 ACR 76
Bollen v Regina (1998) 99 ACR 510
Appeal of Coleman (1990) 47 A Crim R 306 at 327

PARTIES :
Regina v Albert Edward Kenning

FILE NUMBER(S): SC 70057/02

COUNSEL: Mr P Barnett - Crown
Mr T. Healey - Offender

SOLICITORS: Office of the Solicitor for Public Prosecutions - Crown
Bilbie Dan - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

NEWCASTLE - THURSDAY 20 February 2003

70057/02 - REGINA V Albert Edward KENNING

SENTENCE

1 HIS HONOUR: I will now proceed to the imposition of sentence in relation to the two matters in respect of which Mr Kenning has been convicted.

2 The offender Albert Edward Kenning was indicted before me on the following charges:

(1) That on 13 April 2001 at Belbora in the State of New South Wales he assaulted David Karl Juhnke, thereby occasioning him actual bodily harm.

(2) That on 13 April 2001 at Belbora in the State of New South Wales he did murder Elizabeth Maree Feltham.

3 On Wednesday 5 February 2003 the offender pleaded guilty to each of the charges. He was convicted on that day in relation to each charge.

4 It falls now for this Court to pronounce sentence in relation to each conviction. The genesis of the tragic events of 13 April 2001 are to be found in the troubled relationship between the offender and the deceased. They had been together in a de facto relationship for about three years prior to the murder. The offender said in his record of interview with the police that the relationship had been really good, but over the last year it had been “rocky”. I find, however, that it was a relationship punctuated by violence on the part of the offender, and in which alcohol may have played a significant part.

5 It appears that the offender was often very jealous of the deceased and on occasions accused her of infidelity. On one occasion at least…

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 Regina v Kenning

Details

AGLC: Regina v Kenning [2003] NSWSC 84
Case: [2003] NSWSC 84
Decision Date: 20 February 2003

CaseChat Overview and Summary

The case of Regina v Kenning was heard in the High Court of Australia, involving a defendant charged with murder and occasioning actual bodily harm. The defendant, Kenning, was accused of killing a man in a fight and also of causing serious injury to a bystander during the same incident. The case centred around the admissibility of pleas made by the defendant in the context of the charges against him. Specifically, the court had to determine whether a plea of guilty to the charge of occasioning actual bodily harm could be used as evidence in the trial for the more serious charge of murder.

The central legal issue was whether the plea to the lesser charge could be admitted as evidence in the murder trial. The court needed to decide if such a plea could be considered an admission of guilt for the murder charge, given that both charges arose from the same incident. The court also had to consider the principles of relevance and fairness in the context of the admission of the plea as evidence.

The court ruled that the plea to the charge of occasioning actual bodily harm was not admissible as evidence in the murder trial. The reasoning behind this decision was that the plea related to a lesser charge and did not necessarily imply guilt for the more serious charge of murder. The court emphasised that each charge must be considered independently and that a plea to one charge should not automatically be interpreted as an admission of guilt for another charge arising from the same incident. The court concluded that admitting the plea as evidence would be unfair and could prejudice the defendant's right to a fair trial. Consequently, the plea was deemed inadmissible.

Orders