Kennedy v R [2016] NSWCCA 114

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kennedy v R [2016] NSWCCA 114 Hearing dates: 24 March 2016 Date of orders: 15 June 2016 Decision date: 15 June 2016 Before: Hoeben CJ at CL at [1] Harrison J at [1] Davies J at [1] Decision: (1) Appeal against conviction dismissed. (2) Leave to withdraw plea of guilty refused. (3) Grant leave to appeal against sentence. (4) Quash the sentence imposed by Wilson J on 27 March 2015. (5) In lieu, sentence the Appellant 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. Catchwords: CRIMINAL LAW – murder – constructive murder – robbery – victim killed during robbery - joint criminal enterprise – plea of guilty – application to withdraw plea – refusal by primary judge to permit withdrawal of plea – principles – challenges to factual findings of primary judge – whether plea attributable to a genuine consciousness of guilt – whether issuable question about guilt CRIMINAL LAW - sentence – appellant was not the person who killed the victim - challenge to primary judge's reliance on evidence of appellant's knowledge of intention to rob – whether evidence that appellant assaulted victim – no evidence to justify primary judge's finding – need to re-sentence – whether lesser sentence warranted – considerations of parity Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: 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 The Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 R v Kennedy [2015] NSWSC 327 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 R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229 Rotner v R [2011] NSWCCA 207 Category: Principal judgment Parties: Raymond Anthony Kennedy (Appellant) Crown Representation: Counsel: M Johnston SC & M Fleeton (Appellant) N Adams (Crown)