Citation: Kennedy v R [2016] NSWCCA 114
Court: Court of Criminal Appeal, New South Wales
Date: 15 June 2016
Judges: Hoeben CJ at CL, Harrison J, Davies J
Background
The appellant was one of three men charged with the murder of a 75-year-old man who was found severely bashed at his Kempsey home in November 2010. The victim died six days later from extensive brain injuries caused by multiple blows. Two co-offenders, Richard Smith and Steven Smith, had each entered pleas of guilty to murder before the appellant's sentencing proceedings concluded.
The appellant pleaded guilty to murder on 6 November 2013 before the Supreme Court. His liability rested on the doctrine of extended common purpose: he was not the person who physically killed the victim but was a party to a joint criminal enterprise to rob the victim's home. Several months into the sentencing proceedings, the appellant withdrew instructions from his lawyers and sought to vacate his guilty plea.
Wilson J refused the application to withdraw the plea and proceeded to sentence the appellant to a non-parole period of 15 years and 9 months, with an additional term of 5 years and 3 months. The appellant then challenged both the refusal to permit withdrawal of the plea and the severity of the sentence before the Court of Criminal Appeal.
Legal Issues
- Whether Wilson J erred in refusing to permit the appellant to withdraw his guilty plea, and whether refusal caused a miscarriage of justice
- Whether the plea was attributable to a genuine consciousness of guilt in respect of a properly identified basis for murder
- Whether the sentencing judge erred in finding that the appellant had prior knowledge of the planned robbery before attending the premises
- Whether the sentencing judge erred in relying on the evidence of two witnesses during the sentence proceedings
- Whether the sentencing judge erred in finding that the appellant had personally applied force to the deceased
- Whether the overall sentence was manifestly excessive
Decision
Withdrawal of the guilty plea
The Court of Criminal Appeal dismissed the appeal against conviction and refused leave to withdraw the guilty plea. The Court accepted Wilson J's findings that the plea was not attributable to anything other than a genuine consciousness of guilt. No miscarriage of justice arose from the refusal to permit withdrawal, and no issuable question about the appellant's guilt was demonstrated on the available material.
Sentence: knowledge and witness evidence
The Court upheld the sentencing judge's finding that the appellant knew before attending the premises that there was a house to be robbed. It also rejected the challenge to reliance on the evidence of the two witnesses, Ms Button and Ms Roe, concerning the appellant's admissions. Those factual findings were supportable on the evidence.
Sentence: finding of force applied to the deceased
The Court found error in Wilson J's conclusion that the appellant had personally applied force to the deceased. There was no evidence in the sentence proceedings to justify that finding. Because this error affected the notional starting point for the sentence, it was necessary to resentence the appellant.
Resentencing and parity
The Court reduced the notional starting point from 22 years to 21 years, taking into account that the appellant's culpability was lower than that of the co-offender who physically assaulted the deceased, given his liability rested on extended common purpose. Regard was also had to the sentence imposed on Steven Smith, who had himself been sentenced on the basis that he did not physically assault the deceased. A five per cent discount was allowed for the late guilty plea. No special circumstances warranting a variation to the statutory non-parole to balance-of-term ratio were found.
Orders Made
- Appeal against conviction dismissed
- Leave to withdraw plea of guilty refused
- Leave to appeal against sentence granted
- Sentence imposed by Wilson J on 27 March 2015 quashed
- In lieu, the appellant sentenced to a non-parole period of 15 years imprisonment commencing 2 July 2012 and expiring 1 July 2027, with a balance of term of 5 years expiring 1 July 2032
Key Takeaways
- A guilty plea will not be set aside simply because an accused later has a change of mind; the court must be satisfied there is a genuine issuable question about guilt or that the plea was not attributable to a genuine consciousness of guilt.
- Extended common purpose can ground a constructive murder conviction where a participant in a joint criminal enterprise to commit robbery ought to have contemplated that a co-offender might use lethal violence, even if that participant did not personally inflict the fatal blows.
- Where a sentencing court makes a factual finding unsupported by the evidence, and that finding elevates the notional starting point, resentencing is required.
- Parity principles apply when co-offenders are sentenced for the same murder: the Court of Criminal Appeal reduced the appellant's starting point in part because his position was analogous to that of a co-offender sentenced on the basis of no personal assault.
- A late guilty plea that leaves substantial factual disputes unresolved attracts only a modest discount; in this case the Court allowed five per cent.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Khamis v R [2014] NSWCCA 152
- Lowe v The Queen (1984) 154 CLR 606
- McAuliffe v The Queen (1995) 183 CLR 108
- Ming Yuk (Raymond) Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37
- R v Kennedy [2015] NSWSC 327 (sentencing decision below)
- R v Meissner (1995) 184 CLR 132
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Penisini; R v Lagi; R v Taufahema [2003] NSWSC 892
- R v Raymond Kennedy [2014] NSWSC 1921 (plea withdrawal decision below)
- R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
- Rotner v R [2011] NSWCCA 207