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Supreme Court 27 March 2015

R v Kennedy

[2015] NSWSC 327

Assault & violenceHomicideDrugsTheft & property
CRIMINAL LAW MURDER PLEA OF GUILTY JOINT CRIMINAL ENTERPRISE AGGRAVATED ROBBERY CONSTRUCTIVE MURDER

Citation: R v Kennedy [2015] NSWSC 327
Court: Supreme Court of New South Wales
Date: 27 March 2015
Judge: Wilson J

Background

In November 2010, three young men, including the offender Raymond Anthony Kennedy, entered the Kempsey home of Stanley Bruce Davies, an elderly man, and beat him so severely that he died one week later. The attack occurred in the context of an aggravated robbery, with the apparent purpose of obtaining valuables to fund drug use.

Kennedy was charged with murder along with co-offenders Richard Smith and Steven Smith. Richard Smith pleaded guilty in February 2013, and Steven Smith pleaded guilty in October 2013. Kennedy entered a guilty plea in November 2013, but subsequently sought to withdraw it. His application to vacate the plea was refused in December 2014, and the sentence hearing proceeded in March 2015.

The matter came before Wilson J for sentencing on the basis of constructive murder, that is, a murder arising from a death caused in the course of a joint criminal enterprise to commit aggravated robbery.

  • What were the correct facts upon which to sentence Kennedy, given that the parties did not agree on the factual account of his involvement?
  • What weight should be given to Kennedy's background and personal circumstances in mitigation?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
  • What sentence was appropriate having regard to the gravity of the offence, deterrence, and the offender's personal circumstances?

Decision

Factual findings: Because the parties did not agree on the facts, Wilson J was required to make findings independently. The Crown tendered a summary of facts, witness statements, and a recorded conversation. Key witness Glenda Button gave oral evidence that differed substantially from her earlier statement, presenting as potentially drug-affected and reluctant. Wilson J found her police statement (except for two nominated paragraphs she disavowed) to be reliable, accepting the evidence of the investigating officer, Detective Senior Constable Rutledge, that proper procedures were followed in obtaining it and that Button showed no signs of drug affectation at the time.

Co-offender Steven Smith refused to take an oath, declined to give evidence, and was subsequently charged with contempt. The transcript of a recorded conversation involving Smith was admitted provisionally but was subject to evidentiary dispute.

Mitigation and personal circumstances: The Court considered psychiatric evidence from Dr Nielssen but found it insufficient to establish that imprisonment would be more onerous for Kennedy than for other prisoners, or to support meaningful findings about rehabilitation prospects. The Court acknowledged the principles from Bugmy v The Queen regarding the potential impact of background disadvantage on the weight to be given to deterrence, but found the available evidence of Kennedy's background was too slight to justify more than a small reduction.

Special circumstances and sentence: Wilson J declined to find special circumstances, concluding that the standard parole ratio would provide adequate supervision upon release. The Court emphasised that the offence was gravely serious, involving a premeditated and brutal attack on a vulnerable elderly man in his own home, and that both specific and general deterrence demanded a stern sentence.

Orders Made

  • Kennedy was convicted of murder.
  • Sentenced to 21 years imprisonment, commencing 2 July 2012 and expiring 1 July 2033.
  • Non-parole period of 15 years and 9 months, expiring 1 April 2028.
  • Earliest eligible parole date: 1 April 2028.

Key Takeaways

  • Where the parties cannot agree on facts for sentencing, the sentencing court must make its own factual findings based on the evidence tendered, applying ordinary evidentiary principles.
  • A witness's attempt at trial to resile from a signed police statement does not automatically undermine the statement's reliability; the circumstances in which the statement was taken, including the investigating officer's evidence about procedure and the witness's condition, remain relevant to the weight assigned to each account.
  • Under the constructive murder provisions, the gravity of the underlying joint enterprise (here, aggravated robbery of an elderly and vulnerable victim in his home) is a central consideration in assessing the seriousness of the offence for sentencing purposes.
  • The principles in Bugmy v The Queen may reduce the weight given to deterrence where an offender's background disadvantage is established, but the reduction depends on the strength of the evidence about that background; sparse evidence supports only a modest reduction.
  • Refusing to find special circumstances, the Supreme Court confirmed that the standard non-parole period ratio is ordinarily sufficient where there is no evidence that a longer parole period would serve rehabilitation or community protection goals.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), ss 38, 65

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Raymond Kennedy [2014] NSWSC 1921 (the earlier application to vacate the guilty plea)