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Supreme Court 8 November 2013

R v Kearnes (No 2)

[2013] NSWSC 1652

Homicide
CRIMINAL LAW REMARKS ON SENTENCE PLEA OF NOT GUILTY OFFENDER CONVICTED OF MURDER APPROACH TO FACT FINDING OFFENCE OF GREAT MORAL CULPABILITY

Citation: R v Kearnes (No 2) [2013] NSWSC 1652
Court: Supreme Court of New South Wales
Date: 8 November 2013
Judge: Button J

Background

The offender was charged with the murder of a man in his Housing Commission flat in Wagga Wagga in the early hours of 21 July 2011. A jury convicted the offender on 19 September 2013 following a trial. The deceased was a vulnerable person living alone who was known to the offender through a prior domestic connection.

The Crown case was that the offender and a co-offender, Mr Paton, drove from Tumut to Wagga Wagga in the middle of the night, armed with a shortened .22 calibre rifle and ammunition. They gained entry to the deceased's flat and the deceased was shot at close range, dying almost immediately. Three further shots were then fired into the deceased's head, and the body was mutilated post-mortem.

The offender was not found to have been the shooter or the person who mutilated the body. However, Button J was satisfied beyond reasonable doubt that the offender was the moving party in the murder and that the co-offender either assisted the offender or acted at the offender's instigation.

  • What facts could be established to the requisite standard for sentencing purposes, given significant credibility problems with the Crown's two principal witnesses?
  • Whether the offender, convicted as part of a joint criminal enterprise, could be treated as the instigator of the murder notwithstanding that he was not proven to be the shooter.
  • Whether allegations of subsequent attempts to murder the co-offender and a witness could be taken into account as aggravating factors or as relevant to rehabilitation.
  • What sentence was appropriate, having regard to the standard non-parole period of 20 years, the objective gravity of the offending, the offender's criminal history, and the absence of any remorse or rehabilitation.

Decision

Button J applied the standard sentencing fact-finding approach, consistent with R v Isaacs: adverse facts required proof beyond reasonable doubt, and favourable facts required proof on the balance of probabilities. Because the two principal Crown witnesses each told at least one significant lie in the witness box, and because the judge assessed their credibility adversely overall, their evidence was approached with considerable caution and set aside on many topics.

Despite those evidentiary difficulties, the judge was satisfied beyond reasonable doubt that the murder was premeditated. The offender and co-offender had agreed to travel to Wagga Wagga for the purpose of killing the deceased before they left Tumut. They took the firearm and ammunition, used another person's vehicle, asked a third person to monitor a police scanner, and drove for over an hour to carry out the plan. The intention to kill was clear.

On the question of the post-murder allegations, the Crown ultimately accepted, and Button J agreed, that the alleged attempts to kill the co-offender and a witness could not be established beyond reasonable doubt and should not be treated as aggravating the murder. Those matters were therefore put aside entirely.

The judge assessed the offending as an extremely grave example of murder. The killing was premeditated, targeted a trusting and vulnerable victim in his own home, involved mutilation of the body, and was committed in an occupied apartment block on a main road of a regional city. The offender had a prior criminal history involving offences of cruelty and brutality, had served a lengthy prior sentence, expressed no remorse, and maintained his innocence throughout. No mental illness was identified. The prospects of rehabilitation were described as very guarded. Button J found no special circumstances warranting a reduction in the non-parole period and imposed a sentence of 30 years with a non-parole period of 22 years and 6 months.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to a head sentence of 30 years imprisonment.
  • Non-parole period of 22 years and 6 months, commencing 3 October 2011 and expiring 2 April 2034.
  • Balance of term of 7 years and 6 months, commencing 3 April 2034 and expiring 2 October 2041.
  • First eligible parole date: 2 April 2034.

Key Takeaways

  • Where both principal Crown witnesses were found to have told significant lies, the sentencing court put their evidence aside on many topics and based its findings solely on evidence that could be established to the requisite standard of proof.
  • A conviction for murder within a joint criminal enterprise does not require proof that the offender was the actual shooter; being the instigator of the killing is sufficient to attract full criminal responsibility for the murder.
  • Under the sentencing fact-finding framework confirmed in R v Isaacs, a sentencing judge makes independent findings of fact consistent with the jury's verdict rather than construing what the jury may have found.
  • Subsequent alleged offending against potential witnesses was excluded as an aggravating factor where it could not be proven beyond reasonable doubt, even though it arose in the same proceedings.
  • The Supreme Court fixed a non-parole period of 22 years and 6 months, exceeding the standard non-parole period of 20 years, reflecting the premeditation, vulnerability of the victim, post-mortem mutilation, absence of remorse, and the offender's serious prior criminal history.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 21A (aggravating and mitigating factors)

Cases:
- R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 (approach to fact-finding on sentence following jury verdict)