Citation: R v Kennedy [2013] NSWSC 1940
Court: Supreme Court of New South Wales
Date: 20 December 2013
Judge(s): Bellew J
Background
The offender pleaded guilty to the murder of his domestic partner on 3 May 2012. The deceased was 43 years old and shared a home with the offender in Toormina, in northern New South Wales. Their relationship had been volatile, marked by a history of physical violence by the offender toward the deceased, including an incident in which he held a knife to her throat while drunk.
On the night of the murder, the offender had been drinking continuously since midday without eating. Pharmacological evidence established his blood alcohol concentration at approximately 0.239 at 9:00 pm that evening. He drove the deceased approximately 38 kilometres to his brother's rural property at Tewinga, where he killed her. The deceased's body was found on a sofa, having sustained severe blunt force injuries.
The offender arrived at his brother's home late that night, visibly extremely intoxicated, screaming that he had killed someone and asking his brother to help dispose of the body. His brother refused and reported the matter to police. The offender was apprehended several hours later by highway patrol officers, still intoxicated, after fleeing on foot.
Legal Issues
- Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
- How to apply the standard non-parole period of 20 years in light of all relevant aggravating and mitigating factors
- What weight to give the offender's extreme intoxication as a mitigating factor
- Whether the commission of the offence in the home shared by the offender and the deceased constituted an aggravating circumstance
- Whether a finding of special circumstances was warranted to vary the statutory ratio between the non-parole period and the additional term
Decision
Bellew J was satisfied that a life sentence was not appropriate, as the Crown did not seek one and the level of culpability did not meet the extreme threshold in s 61(1). His Honour proceeded to sentence by identifying all relevant aggravating and mitigating factors, consistent with the approach mandated by Muldrock v R (2011) 244 CLR 120, treating the standard non-parole period of 20 years as a guidepost rather than a starting point.
The offender's extreme intoxication was treated as a mitigating factor going to moral culpability, but only to a limited degree. The court noted that the offender had a history of becoming violent when drunk, which reduced the extent to which intoxication could diminish his culpability. The prior history of domestic violence toward the deceased was treated as an aggravating factor. The late guilty plea, entered approximately two weeks before the scheduled trial, attracted only limited discount.
The court found that the murder occurred in the home shared by the offender and the deceased and treated this as an aggravating circumstance. The deceased had a reasonable expectation of safety in her own home, and the offender had exploited that shared domestic space in committing the offence.
On the question of special circumstances, his Honour declined to make a finding. The court held that the offender's prospects of rehabilitation were uncertain and that uncertainty did not constitute the significant positive indicators required to justify departing from the standard parole ratio. The sentence was ordered to commence on 4 December 2013, the day after the expiry of sentences for other offences the offender had been serving concurrently.
Orders Made
- The offender was convicted of murder.
- A non-parole period of 17 years and 6 months imprisonment was imposed, commencing 4 December 2013 and ending 3 June 2031.
- An additional term of 5 years and 10 months imprisonment was imposed, commencing 4 June 2031 and ending 3 April 2037.
- Total sentence: 23 years and 4 months imprisonment.
- Eligibility for parole: 4 June 2031.
- Total sentence expiry: 3 April 2037.
Key Takeaways
- The Supreme Court applied the Muldrock approach, treating the 20-year standard non-parole period for murder as a legislative guidepost rather than a threshold to be explained away, and identified all relevant aggravating and mitigating factors before reaching a sentence.
- Extreme intoxication can mitigate moral culpability in a murder sentence, but that mitigation is reduced where the offender has a prior pattern of becoming violent when drunk, since the foreseeable risk of harm diminishes the exculpatory weight of the intoxication.
- Committing murder in the home shared with the victim was identified as an aggravating factor. The deceased's reasonable expectation of safety in her own home was a relevant consideration.
- A late guilty plea, entered approximately two weeks before the scheduled trial date, attracted only limited discount in mitigation.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were not established. Uncertain prospects of rehabilitation do not constitute the significant positive indicators of likely successful rehabilitation required to justify extending the parole period beyond the standard statutory ratio.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 19A (murder, maximum penalty)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, 61(1)
- Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 (NSW)
Cases
- Muldrock v R (2011) 244 CLR 120
- Markarian v R (2005) 228 CLR 357
- R v Previtera (1997) 94 A Crim R 67
- R v Carter [2003] NSWCCA 243
- R v Fidow [2004] NSWCCA 172
- R v Engert (1995) 84 A Crim R 67
- Bellchambers v R [2008] NSWCA 235
- DS v R [2012] NSWCCA 159
- EK v R (2010) 79 NSWLR 740
- Essex v R [2013] NSWCCA 11
- Hasan v R (2010) 31 VR 28
- Ingham v R [2011] NSWCCA 88
- Montero v R [2013] NSWCCA 214
- PK v R [2012] NSWCCA 263
- R v BIP [2011] NSWCCA 224
- R v Comert [2004] NSWCCA 125
- R v Dong [2010] NSWSC 1242
- R v Goundar [2010] NSWSC 1170
- R v GWM [2012] NSWCCA 240
- R v Hearne (2001) 124 A Crim R 451