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Supreme Court 20 February 2003

Regina v Kenning

[2003] NSWSC 84

Assault & violenceHomicideDomestic & family violence
PLEA TO MURDER CHARGE

Citation: Regina v Kenning [2003] NSWSC 84
Court: Supreme Court of New South Wales
Date: 20 February 2003
Judge(s): Whealy J

Background

The offender, Albert Edward Kenning, pleaded guilty to the murder of his de facto partner, Elizabeth Maree Feltham, and to assaulting a third party, David Karl Juhnke, occasioning him actual bodily harm. Both offences occurred on 13 April 2001 at Belbora in regional New South Wales. The offender and the deceased had been in a de facto relationship for approximately three years, marked by jealousy, alcohol use, and violence by the offender.

On the evening in question, the couple had been drinking at a local hotel and invited two strangers, Dempsey and Juhnke, back to their property for the night. In the early hours of the morning, the offender discovered the deceased and Juhnke near a shed on the property. Despite both being fully clothed and no sexual activity having occurred, the offender concluded the deceased had been unfaithful. He then carried out a prolonged and violent series of assaults on her that resulted in her death.

The offender struck Juhnke with a tree branch, causing injuries to his forearm, upper arm, and leg, before Juhnke fled the scene. The offender later telephoned a friend and stated he believed he had killed the deceased. He was taken into custody on 13 April 2001.

  • What head sentence and non-parole period were appropriate for the murder conviction, having regard to the objective seriousness of the offence and the guilty plea?
  • What discount, if any, should be applied to the sentence to reflect the offender's guilty plea?
  • How should the sentence for the assault occasioning actual bodily harm be structured relative to the murder sentence?

Decision

Whealy J identified several significant aggravating factors in relation to the murder. The assaults were sustained, violent, and cruel. The court found there was no objective justification for the offender's belief that the deceased had been unfaithful, and no justification whatsoever for the continuing and escalating violence that followed. The relationship had previously been characterised by violence on the part of the offender, and alcohol had likely played a role throughout.

His Honour assessed the appropriate head sentence for the murder, absent any plea discount, at 25 years imprisonment. Applying a discount of 15 per cent to reflect the guilty plea, the court imposed a head sentence of 21 years and 3 months, with a non-parole period of 16 years. The court backdated the commencement of the sentence to 13 April 2001, the date the offender first entered custody.

In relation to the assault on Juhnke, his Honour imposed a fixed term of 6 months imprisonment, to be served concurrently with the murder sentence. The court expressed that the sentencing outcome was required to reflect denunciation of the offender's conduct and the community's expectation of a severe penalty for the taking of a human life in such circumstances.

Orders Made

  • Murder: head sentence of 21 years and 3 months imprisonment, commencing 13 April 2001; non-parole period of 16 years, expiring 12 April 2017 (earliest parole eligibility date: 12 April 2017)
  • Assault occasioning actual bodily harm: fixed term of 6 months imprisonment, commencing 20 February 2003, to be served concurrently with the murder sentence

Key Takeaways

  • A guilty plea in a murder matter resulted in a 15 per cent reduction from the otherwise appropriate head sentence, reducing the term from 25 years to 21 years and 3 months.
  • Where an offender is convicted of multiple offences arising from the same episode, a concurrent sentence structure may be appropriate for the less serious charge.
  • Sustained and repeated violence in a domestic relationship context, combined with an unfounded belief in the victim's infidelity, were treated as significant aggravating factors in assessing the objective seriousness of the murder.
  • The sentencing court emphasised the principles of denunciation and community protection as primary considerations where a killing involved prolonged and unjustified violence.
  • Sentences in murder proceedings are backdated to the date of first custody, ensuring the offender receives credit for time already spent in detention before sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v Previtera (1997) 94 ACR 76
- Bollen v Regina (1998) 99 ACR 510
- Appeal of Coleman (1990) 47 A Crim R 306