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Supreme Court 4 November 2022

R v Gina Kennedy (a pseudonym)

[2022] NSWSC 1499

HomicideDomestic & family violence
SENTENCE MURDER GRAVE CASE OF MURDER MOTIVATION OF JEALOUSY AND REVENGE PLANNING GUILTY PLEA

Citation: R v Gina Kennedy (a pseudonym) [2022] NSWSC 1499
Court: Supreme Court of New South Wales
Date: 4 November 2022
Judge: N Adams J

Background

The offender (referred to by the pseudonym Gina Kennedy, with names suppressed under child protection legislation) pleaded guilty to the murder of her estranged husband, Joseph. On 12 September 2020, she purchased an axe from a hardware store and conducted an online search about how to kill someone with it. Either late that night or the following morning, she killed Joseph by inflicting ten "chop style" injuries to his head. She handed herself in to police the following afternoon.

The couple had four young daughters, all of whom were already in foster care at the time of the murder and are now aged between eight and eleven. The relationship had a lengthy history of volatility, with police called to the couple's home on multiple occasions across both New Zealand and Australia, and incidents of documented physical violence by both parties at various times.

The offender had been remanded in custody since her arrest on 13 September 2020. The matter was committed to the Supreme Court for sentencing following her guilty plea in the Local Court.

  • What were the objective facts of the offence, including the extent of planning and the offender's motivation?
  • How did the history of domestic violence in the relationship bear on the objective seriousness of the offence?
  • What weight should be given to the offender's guilty plea, remorse, and personal circumstances in mitigation?
  • What was the appropriate sentence, having regard to the standard non-parole period of 20 years for murder and the requirement to apply a guilty plea discount?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence.

Decision

Adams J characterised this as a grave case of murder. The court found that the offender's motivation was jealousy and revenge, not self-defence or any response to immediate violence. The online searches conducted months before the killing, including searches in May 2020 on how to plan a murder and in July 2020 on methods of poisoning, and the purchase of the axe on the day before the killing, demonstrated significant planning and premeditation.

The court acknowledged the history of domestic violence in the relationship. Joseph had been convicted of assault in New Zealand and charged with assault occasioning actual bodily harm in Australia. However, the court found that this history did not diminish the objective seriousness of the offence to any meaningful extent, given the clear evidence of planning, the nature of the attack, and the established motivation of jealousy and revenge rather than any immediate threat.

In mitigation, the court accepted that the offender had entered a guilty plea at an early stage in the Local Court, expressed genuine remorse, and faced difficult personal circumstances including the loss of her children to foster care. A 25% discount was applied to reflect the early guilty plea, consistent with the principles in R v Ellis. Without the discount, the court indicated it would have imposed 36 years' imprisonment. After applying the discount, the sentence was fixed at 27 years.

The court found that special circumstances existed to justify a modest variation to the statutory non-parole period ratio, setting the non-parole period at 19 years rather than the standard proportion. The court also noted that no finding was warranted under the Crimes (High Risk Offenders) Act 2006 that would justify further extending the parole period beyond what the sentence already provided, a position the Crown did not oppose.

Orders Made

  • The offender was convicted of murder and sentenced to 27 years' imprisonment, with a non-parole period of 19 years.
  • The sentence commences 13 September 2020 and expires 12 September 2047.
  • The non-parole period expires 12 September 2039.
  • The offender's solicitor was directed to advise the offender of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C of that Act.

Key Takeaways

  • A guilty plea entered at the Local Court stage of proceedings for murder attracted a 25% discount in this case, consistent with established sentencing principle, reducing the sentence from a notional 36 years to 27 years.
  • Planning and premeditation, evidenced here by online research conducted months before the killing and the deliberate purchase of a weapon the day before, weighed heavily in the assessment of objective seriousness.
  • A documented history of domestic violence perpetrated by the deceased did not substantially reduce the objective gravity of the offence where the court found the killing was motivated by jealousy and revenge rather than any immediate threat or response to ongoing abuse.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) were found to justify a modest variation to the statutory non-parole period ratio, but the court declined to extend the variation beyond 70% given the length of supervision the sentence already entailed.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a person sentenced for a serious violence offence must be warned of that Act's potential application, with the Supreme Court here delegating that notification to the offender's solicitor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Ellis (1986) 6 NSWLR 603
- Archer v R [2017] NSWCCA 151
- Quinn v R [2018] NSWCCA 297
- R v Darbanou [2018] NSWSC 1672
- R v Haydar (No 4) [2017] NSWSC 615
- R v June Oh Seo [2019] NSWSC 639
- R v Latu (No 3) [2019] NSWSC 951
- R v Baleinapuka [2022] NSWSC 485
- CR v R [2020] NSWCCA 289
- Pritchard v R [2022] NSWCCA 130