R v Gina Kennedy - [2022] NSWSC 1499 - NSWSC 2022 case summary — Zoe

NSWNSWSC

R v Gina Kennedy

[2022] NSWSC 1499

Supreme Court of NSW|2022-10-28|Before: Adams J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-10-28

Before

Adams J

Catchwords

[2015] HCA 29 Goodbun v R [2020] NSWCCA 77 Markarian v the Queen (2005) 228 CLR 357

Source

Original judgment source is linked above.

Catchwords

[2015] HCA 29 Goodbun v R [2020] NSWCCA 77 Markarian v the Queen (2005) 228 CLR 357

Judgment (26 paragraphs)

[1]

remarks on sentence

On 12 September 2020, the offender [1] purchased an axe from Bunnings and searched online as how to kill someone with it. Either late that night or the following morning, she killed her estranged husband, Joseph, by inflicting ten "chop style" injuries to his head with the axe. She handed herself into police at St Marys Police Station at 12.15pm on 13 September 2022. She was arrested and charged with murder and remanded in custody where she has remained since that time. The couple had four young daughters now aged between eight and 11 years who are left without a father and with their mother facing a lengthy prison sentence.
The offender pleaded guilty to murder in the Local Court and the matter was committed to this court for sentence.
The proceedings initially came before me for sentence hearing on 5 August 2022. They could not be heard that day as the offender had caught COVID-19 in custody. The proceedings were stood over for hearing before me on 28 October 2022. After that hearing, I stood the matter over until today for sentence.
Murder is a crime contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum sentence upon conviction of life imprisonment. A standard non-parole period of 20 years imprisonment is specified. These are the guideposts to which the court must have regard in determining the sentence to be imposed.
It is necessary for me to determine the facts upon which the offender is to be sentenced. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to her are established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. If I am unable to find facts to either of these standards, I do not propose to do so: Filippou v the Queen (2015) 256 CLR 47; [2015] HCA 29 at [64].

[3]

The history of the relationship

The offender and the deceased met in New Zealand at a Church dance in 2006. She was 20 years old, and he was 22 years old. They commenced a relationship which continued on and off until shortly before the murder. The offender already had a baby daughter, who I have named Carmen, when she met the deceased. The offender and the deceased went on to have four daughters together. They are all now in foster care. They are aged 11 (Grace), 10 (Gretel), nine (Elsa) and eight years old (Naomi).
It is common ground that the relationship was a volatile one which was at times marred by domestic violence.
Prior to moving to Australia, New Zealand police were called to their home in 2010 following a verbal argument during which time the deceased pushed the offender up against a wall, threw her to the ground and punched the bedroom door. He was convicted of assault and received a 6 month bond. There were other incidents in New Zealand which required police attendance. On one occasion, the offender had a knife and threatened to injure herself by cutting her own throat. Police at that time noted that the offender was jealous of a female who planned to attend an upcoming child's birthday party.
From the time the couple moved to Australia, the offender was observed on occasion to be suspicious and jealous of the deceased. On one occasion, she was seen to check his work clothes and bag for any evidence of other women. She was heard to say at that time, "I know he's been with other women. If I get proof I'll bash him".
The couple's first living child was born in 2011 after which time they moved to St Marys. On 29 December 2011, a verbal argument between them escalated such that the deceased punched the offender's face and head several times resulting in minor bruising and a small cut to her lip. She hid in the laundry and contacted police. The deceased was charged with common assault and fined.
Police were called again on 5 January 2013 by a neighbour. When they attended, no injuries or damage to property were noted and no further action was taken. The argument had apparently been a verbal one on that occasion. Police were called again on 24 March 2014 as a result of a verbal argument. Again, there was no evidence or disclosure of any physical assaults, and no action was taken.
On 15 July 2014, Carmen was removed from the offender's care following an allegation of ongoing physical and verbal abuse by the offender. At that time, Carmen and the couple's three children returned to New Zealand to live with relatives. The offender was pregnant with their fourth child at that time. She and the deceased remained in Australia.
On 24 July 2014, the deceased called an ambulance after finding the then eight months pregnant offender inhaling kerosene. She was taken to hospital. Their fourth and youngest child was born a month later.
On 4 November 2014, police were called after yet another verbal argument. Again, there was no evidence or disclosure of any assault. In 2015, the offender returned to New Zealand. By that time, all four of her children were in the care of the deceased's mother. In 2016, the offender returned to Australia with her four children (Carmen remained in New Zealand and moved in with the offender's family).
The deceased was in regular contact with his mother in New Zealand via Facebook messenger and phone. He told her that the offender would often accuse him of having relationships with other women. The offender was critical of the deceased's relationship with his mother and did not like him talking to her for long periods of time.
Police were called to another argument on 3 August 2019. On this occasion, the deceased threw bottles at the offender which landed on the ground causing minor lacerations to her feet and toes. Attending police described both the offender and deceased as being heavily intoxicated. Although the offender told police that she had overheard the deceased say he was going to kill her, this was denied by the deceased. The deceased was charged with assault occasioning actual bodily harm and placed on a conditional release order for 12 months.
In 2019, the offender started an intimate relationship with another man, Mr Dorvil, which lasted from September to October 2019. They remained in contact thereafter.
In February 2020, the deceased signed a lease at premises in St Marys which expired on 11 August 2020 but continued periodically after that. The offender moved in with him. Although the agreed facts did not expressly state so, it is to be inferred that the children moved in as well.
On 26 April 2020, police were called after the deceased and the offender got into a verbal argument. Again, there was no evidence or disclosure of any assault.
On 10 May 2020, a Google search was conducted on the offender's mobile telephone at 6.36 pm in these terms: "How to plan a murder". That was just over four months prior to the deceased's murder.
On 26 June 2020, the offender and the deceased's four children were all removed by the Department of Communities and Justice following an allegation of physical abuse by the offender on the eldest child. Although the children alleged domestic arguments between their parents, they made no allegations of any physical violence by the deceased towards either themselves or the offender.
The offender and the deceased were subsequently allowed supervised visits with their four children. On 10 July 2020, the deceased told a caseworker that he wished to leave the offender but was too scared to tell her. The caseworker agreed to tell the offender instead. When the caseworker told the offender that the relationship should end and she should move out and not live with the deceased, the offender became angry, rude and abrupt.
On 18 and 19 July 2020, the offender conducted a number of Google searches as follows: "Executed in Error/The Five Top Poisons/Secrets of the Dead"; "What methods are used to poison someone; "5-most deadly poisons - how fast and efficiently they kill you"; "Fast way to poison someone"; "Poisoning your lover's coffee or tea or smoothie"; and "How to poison someone".
When the caseworker spoke to the offender on 20 July 2020, she was told that the offender had moved out and was no longer in a relationship with the deceased. In that same month, the deceased confided in her boss that the offender had been violent towards her and the children.
On 23 August 2020, the offender went to church. Her church pastor dropped her home and noted that the offender was very worked up and angry and complained about how long the deceased was speaking to his mother. Later that day, the deceased called triple-0 complaining that the offender had stabbed him with a meat cleaver. When police arrived, he told them that they had argued, he had thrown her belongings out and had told her to leave. She had then stabbed him with a meat cleaver in the kitchen.
Police saw a red coloured graze measuring 2 to 3 cm on the deceased's back and upper shoulder area. He declined to make a statement to police and instead told them that he just wanted her to leave. He also told them she was not living there, was not on the lease and he was only letting her stay there as she had nowhere to go. The offender on the other hand told police that she acted in self-defence and the deceased was angry because she had been at church too long.
The offender was served with an Apprehended Domestic Violence Order ("ADVO") at St Marys police station that day. Later that day, the deceased showed his injury to a friend who photographed it. The photographs were sent to the deceased's mother who subsequently contacted police in Australia to express her concern for her son's safety.
The offender did briefly move out and stay with her church pastor but shortly thereafter she returned to live with the deceased in breach of the ADVO.
On 24 August 2020, the offender called the deceased's boss and told him that the deceased was intending to create a scenario at the workplace that would justify him assaulting him. A workplace meeting was called, and the deceased explained how the offender had attacked him. A workplace safety plan was enacted, and the matter was reported to police.
The offender telephoned the deceased's boss again on 26 August 2020 and told him that the deceased was a person of bad character that should be sacked. This was also reported to police.
At around this time, the offender told her church pastor that she had recently lost a job because people had contacted her employer and told them she was dangerous.
On 26 August 2020, the deceased's aunt contacted police in response to the offender leaving a voicemail message in these terms: "Goodbye, sorry for everything I am going to go. Don't forget to look after my children. Sorry for everything".
The offender subsequently attended St Marys police station and explained that she had had a falling out with her partner and lost her job and that she did not have any thoughts of self-harm. She told police she did not require any services, was staying at a friend's place and just needed some time to get back on the right track. On 1 September 2020, police referred the offender to the Nepean and Blue Mountain mental helpline.
Shortly afterwards, the offender returned to live with the deceased. Between 3 and 5 September 2020 she conducted further searches on her phone in these terms: "Can you kill someone with hot boiling water"; "How to kill someone with a knife"; "What is the best way to use a knife and kill someone? A mate and I are debating, and someone has to know"; "Question: How sharp should the knife normally be to kill someone when aiming to the side of the neck. And if its (sic) just a kitchen knife that hasn't been sharpened for a year can a non-adult kill using it"; "How easy is it to kill someone with a knife?"; "Killing someone in the neck fast"; "Killing someone in the neck fast with the knife"; "Question: Is it really easy to murder somebody with a knife"; "Question: How sharp should the knife normally be to kill someone when aiming to the side of the neck and if its (sic) just a kitchen knife that hasn't been sharpened for year can a non-adult kill using it?"
On 11 September 2020, the day before the deceased died, the offender met with a Mr Marouch whom she had met on an online dating site. She had a coffee with him and then went to work. She finished work at 10.00pm. Mr Marouch picked her up, drove her to McDonald's and then to his house where she stayed for a while. She told him she had to go home to look after her grandfather, so Mr Marouch dropped her near the deceased's house in the early hours of Saturday morning. He received an infringement notice at 3.34am which places her return home at about that time. The deceased was not at home when she arrived home.
The deceased meanwhile had been drinking with a friend at a hotel in St Marys and met some other people there including a Ms Smith. When the hotel closed, they moved to another hotel at about 2.15am. They then went to a friend's house where the deceased took methylamphetamine. About 5.30am, three of them moved on to another house. One of his friends fell asleep and he remained talking to Ms Smith.
During the conversation, the deceased's mobile telephone was ringing, and he kept receiving messages from the offender. The deceased described her to Ms Smith as "relentless" and "wild". He told Ms Smith she was violent and hurt him and that she had "macheted" his back. He discussed the ADVO and described the offender as "fucking dangerous".
Phone records reveal that the offender sent 19 text messages during this time and tried to call the deceased from 5.30 am through to 1.00pm. The messages were to the effect of accusing him of having sex with someone else.
About 10.00am, Ms Smith asked the deceased to go with her hoping to pursue a relationship with them, but he told her he did not want her to get caught up in his world. Despite this, he did eventually go with her to her house.
At about 10.00am the offender sent text messages to another man that she had met through online dating and asked him to do her a favour. She texted, "I really wanna get back at my ex" and "very angry and upset". He did not respond to these messages.
At about midday, the offender sent a text message to another man she had had a casual relationship with. She asked him to call the deceased's phone to see who answered. She told him to ask for "Richard" and pretend it was a wrong number. Records show that this call was made at 12.06 pm. At that time, the deceased was still with Ms Smith.
The deceased left Ms Smith's house in an Uber at about 1.00pm on 12 January 2020. He told her he had to meet his ex-partner to get some money from her. They exchanged numbers. The deceased told Ms Smith he wanted to try having a relationship with her.
The deceased arrived home at 1.09pm. This was captured by CCTV footage from the next door neighbour's house. There was no further contact between Ms Smith's phone and the deceased's phone after that. Some time after that, he was seen by a neighbour. After that, he was never seen alive again.
At 2.26pm, the offender called a taxi to take her to the offender's home. She had problems paying for the taxi and did not arrive at that time.
At 4.33pm, Ms Smith's number was saved as a contact under the name "Mark" in the deceased's phone. This is a last confirmed usage of his phone.
A few minutes later, at 4.35pm, the offender searched on her phone "how to kill someone fast while sleeping" and "what pills to kill someone while sleeping" and "question: what drugs can be taken to quietly kill you in your sleep".
At 6.03pm, the offender sent a text message to a friend asking if he could take her to Bunnings before it closed. She texted other people for a lift as well. She was unable to secure a lift with anyone.
Meanwhile, at 6.13pm, Ms Smith sent the deceased a text message thanking him for everything the previous night and telling him he was a "true gentleman". The deceased did not respond to this message.
At 6:20pm, the offender called Premier Cabs and was taken to Bunnings in Minchinbury. She was captured on CCTV footage purchasing a Trojan brand half axe. She was wearing a high visibility work top and shorts. She returned to the waiting taxi and was driven home.
The offender called a New Zealand phone number at 7.35pm and spoke for 478 seconds. It is not known who she spoke to.
At 8.24pm, the offender sent text messages to her church pastor which included the following texts: "You guys might hear something on the news I might be in prison"; "I can't deal with it anymore"; "You guys might hear about me killing him"; "My brain is just blank"; "I can't handle it anymore"; "Sorry sis my brain is just blank"; "I agree to go to prison"; "I can't handle him anymore"; "What are you's doing?"; and "I'm going to bed now".
At about 8.43pm, the offender searched the following terms on her phone: "Killing someone with axe"; "Killing someone with axe what part of body to go for"; "Axe murderers: Aiming for head woth (sic) the axe"; "What is the fastest part of body to kill someone with the axe".
At some stage, all text messages between the accused and the deceased were deleted on both the deceased's phone and the offender's phone, presumably by the offender.
An Uber Eats receipt located at the deceased's premises shows that there was an order for a double Big Mac meal and double quarter pounder burger at 1.59am on 13 September.
The offender sent a text message to Mr Marouch at 6.45am.
At 9.40am the offender was captured on CCTV footage of the Oxley Park supermarket on Sydney Street. She was wearing a grey long-sleeved shirt, long black pants and slip-on shoes. Her hair was in a bun. She was wearing sunglasses. The owner of the supermarket knew her as a regular customer and noticed that her clothing was different. She had make-up on and her hair was neat. When he asked whether she was going out the offender said, "Yeah I'm going far". She headed back towards the deceased's house.
At 11.45am, the offender called a sister in New Zealand asking for her parents. Her voice was described as worried and scared. She told her sister, "I have done something bad to [Joseph]." She then had a conversation with her parents.
At 11.52am, she called a taxi. CCTV footage from the neighbour depicts her outside having a cigarette. She waved back to her neighbour. The taxi arrived. She asked to be taken to St Marys police station. At 12.01pm, she called the deceased's aunt and left a voicemail requesting to call back. She called again and told her, "I just killed [Joseph]." "I have already told my family, they were screaming saying they are not going to see me. I am so sorry for what has happened and I hope that you still love me". She then added, "It was self defence. I have the keys to the place. I have to turn myself in. I'm at the police station already. I'm just finishing my cigarette before I go in so they can take his dead body out of the place". The friend subsequently called triple-0 to report this.
The offender entered St Marys police station at about 12.15pm and told them she was there to hand herself in and that she had just killed her partner. She was cautioned. She told police: "so my partner came home he was really angry and hungover, I was just trying to sleep, and he came towards me with a knife, so I used an axe and killed him". She told them she had killed him about an hour ago and that she knew he was dead because "his brains were all squashed" after she hit him three times with an axe.
She also told police: "He didn't say nothing he was planning to kill me whilst I was lying … then I woke up, I lost the plot from that, because he attempted to kill me three times … and our relationship is always domestic violence, he has a very high record with the cops."
The offender showed police a red line on her chest and told police the deceased had scratched her. Police photographed that injury.

[5]

The offender's ERISP

The offender's Electronically Recorded Interview of Suspected Person ("ERISP") was not tendered at the proceedings on sentence, but the agreed facts included a summary of her relevant answers.
The offender told police she left for work on Friday 11 September 2020 at 12.30pm and caught public transport to North Richmond. That was not the case. She was driven to work by Mr Marouch who she had a coffee with first.
The offender told police that she caught a train home arriving around 11.45pm. That was not the case. She met up with Mr Marouch after work, went to his home and he later dropped her home at about 3.00am.
She told police that when the deceased did not return home on Saturday, she was worried. He did not answer his phone when she called him multiple times. She told police that she stayed home by herself all day, went to bed around 9.00pm and did not see the deceased that day. In fact, on that day, she went to Bunnings to buy the axe. Also, the deceased had in fact arrived home at 1.09pm that day as captured by CCTV footage.
The offender told police that when she awoke to use the bathroom at 2.30am the deceased was still not home. She tried calling him, but his phone was switched off. She had a coffee and a cigarette but could not get back to sleep as she was worried about the deceased. This was untruthful. The deceased had been home for over 12 hours by that time.
The offender told police that at 11.00am the following morning (Sunday 13 September) she said her prayers and went to the local shop to buy cigarettes. She in fact went to that shop at 9.40am.
She told police that she returned home from the local shop and had a cigarette and did not think the deceased was home as his car was not parked outside the gate where he usually parked it. This was untruthful. The deceased was home and usually parked his car in the garage where it in fact was.
She told police that she went inside and heard the deceased upstairs. He had been out "clubbing" all night and was drunk and angry at her. This was not true. He had been at home since 1:09pm the previous day. He had a shower and relaxed. She told police that she tried her best to make him the food he wanted. She told police that she felt herself falling asleep but could not sleep because she thought the deceased was going to do something. He was walking around like a "wild dog".
The offender also told police that the deceased was lying on his bed with his feet at the head of the bed and his head at the foot of the bed. He had been using his iPad. She asked him where the car was, and he told her that one of his friends had the car. She kept asking him where he had been for the past two days, and he told her he had been "out". She kept asking about this and he became angry, raised his voice and started to punch the wall. The evidence as to him being drunk was not true either. His blood alcohol reading showed no alcohol, only some traces of methamphetamine. There was no evidence of any damage to a wall either.
The offender told police that she had a suspicious feeling that something was not right. She lay next to him on the bed on the side closest to the door and tried to calm the situation down. She told police that the deceased jumped up and grabbed a knife from the drawer beside the bed and came towards her with the knife. It had a white handle and was a sharp knife. It was part of a set that was kept under the dining table. Such a knife was later found in the sink. The fingerprints found on the knife do not match the deceased.
The offender described using the blankets to block the knife. She elbowed the deceased using all of her weight. She described it as "UFC" move. She then pushed him down, so he was lying on his side on the bed. She felt she dislocated her shoulder doing this. He dropped the knife. She picked it up and threw it away and ran to get the axe. She told police that the deceased had bought the axe, but she did not know where from. He used it to chop down trees. She told a number of other lies about the axe as well.
The offender told police that after she grabbed the axe from a cupboard she started "whacking" the deceased with it. He was lying on his side. He was swearing. He did not know it was coming. She hit him three times to the head. She put all her weight on the axe when she struck him. She told police that she was "not herself" when she first hit the deceased. When she was hitting him, she thought of everything he had done to her.
The offender told police that he was still moving after the first time she hit him. After she hit him the second time he started slowly dying. She hit him a third time and he did not breathe again. She knew he was dead. She could not see him breathing. He was losing blood from the head. She took off her clothes and left them on the floor, had a shower then caught the taxi to the station. This was not true. She arrived at the police station wearing the same clothes she was wearing at the local shop at 9.43am that morning. There are other problems with her account. The deceased was struck ten times not three. She could not have used the blanket as a shield from the knife as there were no signs of struggle in the bedroom and no cuts to the blanket. The evidence was consistent with the deceased being struck whilst he was either asleep or resting.
The offender told police that her mind went blank due to all of the domestic violence. She also told them that he had threatened to kill her so many times she killed him instead. She told the police that after the children were removed, the deceased attempted to murder her on four occasions. She did not report these incidents as the deceased was already in trouble with police and she did not want to make it worse.
She told police that the first time the deceased tried to murder her was the day the children were removed. He was drinking and angry and a knife fell from his pocket. He threw the knife on the floor and said, "I'm gonna kill you". The second time the deceased tried to kill her was three months after the children were taken. He kept an orange handled knife underneath his pillow. It fell from underneath the pillow. She asked him why he had a knife there and he did not answer. She asked him whether he was planning to kill her. He did not answer. The offender was too afraid to sleep that night. The third time the deceased tried to kill her was about a month prior to the interview. He had a serrated bread knife with a black handle. He walked around making slicing gestures with his finger and said to her "oh, I really want to kill you". The offender begged for her life. He went outside, had some cocaine and left. The fourth occasion was on the day that she killed him.
She told police that the deceased snorted cocaine and took drugs and was a heavy drinker. She tried to stop him taking drugs, but he would become angry. I note the police evidence to the effect that both of them were intoxicated on the occasions the police were called. She also told police that every time the deceased tried to murder her, she contacted his auntie and grandmother. There was no evidence before the court as to whether that was in fact the case.
The offender told police she moved back there about two weeks ago at the deceased's request. That is inconsistent with what the deceased told other people, including the case worker.
The offender told police that the children were removed due to domestic violence by the deceased. She described him as being "very abusive" of the children. That was inconsistent with the true state of affairs as well.
The offender accepts that she told police a number of lies in her ERISP: as to her movements, that she had only struck the deceased three times and that the axe belonged to the deceased. Further, the offender's account that she was acting in self-defence and as to the timing of his death is contrary to other evidence.

[7]

Timing and circumstances of the killing

For the reasons I have already explained when summarising the offender's description of the killing in her ERISP, most of what she told police can be disproved by other evidence as described in the agreed facts. I am not satisfied that the deceased attacked her in a drunken rage. The evidence was that he was not drunk. Nor was he only coming home from a night clubbing in the morning of 13 September; he came home nearly 24 hours earlier. The fact that he was not drunk and arrived home earlier makes it difficult to accept her evidence that she felt he was going to do something bad to her. Further, the crime scene evidence is inconsistent with the version provided by the offender. She did admit that he did not see her coming and that she struck him by surprise. I am satisfied that is what occurred. I am not satisfied on the balance of probabilities that she acted in response to any aggression by the deceased at that time.
The remaining question is as to the timing of the murder. The last time the deceased was seen he was reversing his car into the garage some time after he got home at 1.09pm on 12 September 2020. The last confirmed usage of his phone was at 4.33pm when he modified and saved Ms Smith's number in his phone under the name "Mark". It was two minutes after that that the offender again googled, "How to kill someone fast whilst sleeping". I am satisfied that the deceased would have been sleepy at that time as he had been up all night and day. It was after that that the offender tried to get people to drive her to Bunnings. A romantic message from Ms Smith was received but not replied to at 6.13pm, presumably because the deceased was asleep. The deceased was alive until at least 7.00pm as that is when the offender returned home with the axe.
The offender started sending messages to her pastor about going to prison and that she might hear about her "killing him" at around the same she was googling as to how to kill someone with an axe. I am satisfied that at the time she sent those texts she had not killed him yet as there would be no need to google how to do so after it was done.
An Uber Eats order was placed at 1.59am. The offender texted a friend at 6.45am and went to buy a coke and cigarettes at 9.40am.
I am satisfied that the offender had already killed the deceased by the time she went to the shops. She told police that after she killed the deceased, she took her clothes off and left them on the ground, but she was wearing the same clothes in the CCTV footage at the supermarket as when she went to police. Also, her uncharacteristic hair, make-up and clothing, and what she said to the shop owner, is consistent with her decision to go to police to hand herself in.
As far as the question as to when during the period from about 9.00pm and 9.40am she killed him. I am simply unable to be satisfied beyond reasonable doubt that it was close to 9.00pm. The ordering of food is a neutral fact as is calling her friend early in the morning. She may well have killed him close to 9.00pm, I just cannot be satisfied of that beyond reasonable doubt. Rather, I will sentence the offender on the basis that it was at some time during the early morning well prior to her attendance at the local shop.

[8]

The history of domestic violence

The Crown does not accept the offender's account that the motive for the killing arose from a long history of domestic violence; that the deceased tried to murder her on several previous occasions; nor that she reported such incidents to the deceased family because no such incidents were reported.
On behalf of the offender, reliance was placed on the fact that there was only one police report of her assaulting him which was dealt with by way of an AVO but three convictions of him assaulting her. Apart from the claims made by the offender, the only evidence put before the court to suggest domestic violence at the hands of the deceased was a statement from the offender's sister. She described the relationship between the offender and the deceased as "controlling" but in support of that could provide no examples of this beside the deceased not wanting to spend time with the offender's family when they visited New Zealand. Apparently, he would stand out the front looking at his watch and be impatient to leave. She had not seen any abuse herself nor had the offender disclosed any to her.
A statement from Mr Dorvil was tendered by the Crown and relied upon on this issue. The offender had been in a brief relationship with him in September-October 2019. He told police that the offender described to him terrible abuse she had suffered at the hands of the deceased, including an occasion when he was arrested for threatening to burn a house down while carrying gasoline. That is not supported by the police evidence. She also told him that her children were removed from her care because the deceased's family had bribed the children to say she had "bashed" them. She also told him of other incidents when police were called that do not accord with police records. This statement was not relied upon by the Crown for the truth of the assertions therein. Rather, it was relied upon to show that the offender was prone to making false accusations.
I have already summarised the evidence on this question. The relationship was clearly a volatile one. I am satisfied that the deceased assaulted the offender in 2010 and early 2011 and again in 2019, about a year before the children were taken away, when he threw bottles on the ground which smashed and caused some lacerations to her feet. I am also satisfied that there were numerous verbal arguments between them, but I am not satisfied of the death threats that the offender reported to police said to have been made by the deceased in the months prior to his murder.
On the other hand, there was also evidence that the offender was jealous of other women from early in the relationship: that fact was noted by police in 2011 and a housemate in early 2012. The deceased complained to his mother about the offender's jealousy in 2016 and told their caseworker he was scared to leave her in July 2020, only months before his death. Furthermore, the offender's violence led to her first daughter, Carmen, being removed from her care in 2014. The offender started to "google" ways to kill someone even before her children were removed from her care in June 2020. There is no evidence before the court that the deceased ever assaulted the children but there is evidence the offender did. Two months before his death, police issued an ADVO to protect the deceased from the offender after she assaulted him.
The only ADVO in place at the time of the murder was to protect the deceased from the offender.
Nor do I accept the offender's claims that she repeatedly called the deceased on the night of 11/12 September because she was worried about him. Her request to a male friend to call the phone and see who answered is consistent with jealousy and checking up on him. Further, the evidence from Ms Smith contained in the agreed facts was that the texts from the offender accused him of sleeping with someone else. Ms Smith's evidence is also inconsistent with the offender's claims that he wanted her back and she was the one who did not want to go back.
Overall, I am satisfied that although the relationship was a volatile one and there had been recorded instances of the deceased assaulting the offender from early in the relationship, I am not satisfied on the balance of probabilities that the motivation for the murder was "blacking out" and striking him while thinking of all the violence he had inflicted on her. Although she may have thought about that to some limited extent, I am satisfied beyond reasonable doubt that the motive for the murder was jealousy and revenge for him leaving the relationship.

[9]

Objective seriousness

The Crown submitted that I would find that the objective seriousness was "well above the mid range", whereas on behalf of the offender it was submitted that I would assess the objective seriousness as being in the mid range.
The Crown submitted that the offence was aggravated by the use of the weapon, by the planning and by virtue of the fact that the offence was committed in the home of the victim. The offender accepted that these were aggravating factors. The murder was also committed at a time when the offender was subject to an ADVO.
The Crown relied on the observations of Johnson J in R v Cherry [2017] NSWCCA 150 at [80], Wilson J in Goodbun v R [2020] NSWCCA 77 and Bellew J in R v Lloyd [2022] NSWSC 906 all to the effect that even though a breach of an ADVO is not strictly analogous to committing the offence on conditional liberty, it nonetheless increases the contextual seriousness of the offending. I have considered that submission. I have had regard to the fact that the deceased was killed in his own home and that the offence took place at a time when he had been afforded the protection of an ADVO, but I otherwise have not had regard to the fact that this offence was committed in breach of an ADVO as an aggravating factor within the meaning of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act").
In addition to the aggravating factors I have already referred to, I have also considered the circumstances of the killing, which involved a frenzied attack on a man who was at the time either resting or sleeping. The evidence cannot establish for how much of the attack the deceased was still alive. The evidence is that any of the chops could have killed him. The Crown relied on the observations of Simpson J in AB v R [2014] NSWCCA 339 at [43] to the effect that a killing carried out in a frenzy is not less objectively serious than one that is carried out in a prolonged fashion designed for maximum pain. I accept that submission as a matter of general principle.
It was common ground that the offender is to be sentenced on the basis that she intended to kill the deceased.
I have already stated that I do accept that the relationship was one marred by domestic violence, but I am not satisfied that the evidence establishes that the motive for the murder was derived from that history. Rather, I have found that it was a planned killing committed out of revenge and jealousy.
This is a very grave case of murder. To the extent that it is necessary to do so, I find that it falls above the mid range of objective seriousness. I do not consider it necessary to be any more specific than that.

[10]

Subjective case

The offender has no previous criminal history.
Her background was put before the court by way of affidavit and by a report of Anita Duffy, forensic psychologist.
In her affidavit, the offender set out her family background, education, employment and personal relationship history as well as setting out the circumstances of her present incarceration.
She was 34 years old at the time of the offence and is now 36 years old. She was born in West Samoa. She is the second oldest child of nine children. Her family were Mormons and she attended church every Sunday. When she was ten years old her family moved to New Zealand.
She had her first child when she was 17 years old. She did not even know she was pregnant. She had received no sex education and did not know she was pregnant until she went into labour. The child's father has played no role in her daughter's life.
The offender's father died in May 2022 arising from complications of type 2 diabetes. Her mother is 60 years old and in good health. The death of the offender's father has hit her hard.
The offender was good at sport at school and was part of the Auckland representative basketball team. She had hopes of becoming a professional basketball player, but she started truanting as a teenager and was suspended for two weeks before leaving school at 17 when she had her baby.
The offender's mother worked as a housekeeper and the offender gained some employment in that field. Since then, she has had a variety of other unskilled jobs throughout her life. She has nearly always worked full-time except for when she was on maternity leave. At the time of her arrest, she was working. In her affidavit she said her last job was with Rexroth, maintaining mining equipment. She told Ms Duffy that she quit that job in 2020 and was working in Westrock in Richmond (a packaging company). The agreed facts state that on 26 August she lost that job due to people contacting her boss telling him that she was dangerous.
The offender is a citizen of New Zealand and has no Australian permanent residency.
The offender described in her affidavit that in 2014 the deceased's mother decided to take care of all five daughters and moved them to New Zealand but she became ill and called on the offender's family in New Zealand to intervene to assist.
Upon her return to Australia in 2019 the relationship continued to be difficult. The children were still in New Zealand. The offender claims that the deceased wanted to reconcile with her, he promised to stop using drugs and he arranged for the girls to come back from New Zealand. I note that the offender's claims that the deceased took illicit drugs is borne out by the evidence that he took methamphetamine in the morning of 12 September.
Both the offender and the deceased were employed maintaining mining equipment when the girls returned to live with them. The offender claims to only drink on special occasions and has never used illicit drugs nor abused prescription medication. I note that there is no material before me to rebut her claim regarding drug use, but the police evidence is that when they were called to verbal arguments the offender was intoxicated.
In custody, the offender works in the kitchen and has done so for 21 months. She earns $51 a week which she uses on buy-ups. She was unable to attend her father's funeral in New Zealand earlier this year. She has not had any in-person visits other than from her legal representatives. She attends chapel weekly. She understands she will receive a lengthy jail sentence and wants to work for the whole of the sentence and continue taking courses.
A similar history was reported to Ms Duffy. In addition, Ms Duffy noted that in her discussions about the offence the offender tended to impose significant blame onto others for her increased tension and stress and indicated that she been subjected to "significant domestic violence" by the deceased over the years prior to the offence. She expressed more emotion over the death of her father than in relation to the death of the deceased, but she took full responsibility for her actions saying that she had "had enough".
The offender was observed by Ms Duffy to dismiss or diminish negative emotions such as jealousy on her part over Joseph seeing other women. She explained that she tried to change his drinking and drug use and yet stayed with him out of loyalty. She acknowledged that she was afraid of him especially when he was affected by substances. She told Ms Duffy she thought that he was "100% capable" of killing her when he became very angry. When she was asked about her levels of anger and ability to control it, she responded that she generally "copped" his abuse and aggression rather than argue back for fear of being beaten.
As for her alcohol use, the offender denied being intoxicated when she and the deceased argued. She said he was the one who become aggressive and unpredictable due to alcohol and drugs he consumed. She acknowledged that she drank alcohol but that she generally only consumed a maximum of two bottles of vodka cruisers to relax. As for her relationship with the deceased, she told Ms Duffy that she had never disclosed to her family the problem she was having with him and his domestic violence as she did not want them to think he was a bad person.
As for the offence, the offender explained that it occurred after a build-up of anger and frustration over her partner's treatment of her. The offender reported tensions between her and the deceased. He continued to drink and use drugs and denigrate her and her family. She told Ms Duffy it all "built-up" to the actions she took on the day of the offence. She said that she had bought the axe to protect herself as he had been verbally abusive and threatening. On that day, he called her a "slut" and said nasty things about her family. She said that when she killed him, she was "another person", an "evil" person and that "Satan was in her". She was "not me", as she is normally very religious. She was very angry after they argued. She was "sick of it" and "not in my right mind" when she went to Bunnings to buy an axe. She said that when she killed him her "mind was not thinking straight ", that her "mind shut out completely". She was driven by fear of what he could do to her and anger at the frustrations and problems in the relationship. She denied wanting revenge or punishing him and maintained that she loved him, and he was the man of her life, but when he was using drugs or drinking, he was unpredictable and dangerous.

[11]

Expert opinion of Ms Duffy

Ms Duffy administered the Personality Assessment Inventory ("PAI") which is a 344-item comprehensive questionnaire which measures categories of psychopathology, areas for treatment consideration and interpersonal factors. The PAI results indicated the offender may be uncertain about major life issues and may feel empty and unfulfilled. Within her interpersonal relationships she had a very unstable sense of what she desired from those interactions. She was likely to have a history of intense relationships and be preoccupied with fears of being abandoned or rejected by those around her. She tended to be distrustful and suspicious of others, to closely monitor her environment for evidence that others are trying to harm or discredit her in some way and may question the motives of others.
Ms Duffy opined that the offender exhibited mild, transient depressive symptomatology. She occasionally experienced to a mild degree maladaptive behaviours related to controlling anxiety. Her interpersonal style indicated that her assertiveness, warmth and concern for others was typical of those of normal adults. She reported about average levels of stress and she enjoyed social support, both being favourable prognostic signs for future adjustment.
Overall, the offender's responses suggested an acknowledgement of important problems and the need for treatment to deal with these problems. Ms Duffy concluded that in her opinion the offender did not suffer a significant mental illness or psychopathology. She showed some borderline traits, specifically a history of ambivalent intense and unstable relationships, emotional dysregulation and episodes of poorly controlled anger. A negative relationship, suspiciousness of motives of others and hypervigilance to betrayal were all relevant factors that contributed to her interpersonal difficulties in conflict and arguments in her relationship with the deceased. Ms Duffy observed the following: "Ms [Kennedy]'s documented history of documented anger and aggression with [Joseph] and with her children such that they were removed from her care, suggest that her offence was a culmination of a series of negative interactions with her partner, consistent with her statement that she was in a state of emotional arousal and her actions were prompted by anger, frustration, as well as fear of him harming her. On the night before the offence, Ms [Kennedy] indicated that she was angry with [Joseph] staying out all night, expressed in a text message to a friend, and in her frequent text messages to him. In our sessions, she said that she had 'had enough' and that her emotions had built up during that Saturday before she went to buy the axe, and later killed him. She reported that when she committed the offence, her state of mind was 'blank', 'not myself', and she was 'not in the right mind'. From her description she may have experienced a transient depersonalisation episode, precipitated by stress, although she was aware of her actions and their consequences. It is known that psychological trauma can lead to dissociative processes that provide subjective detachment from an overwhelming emotional experience during and in the aftermath of trauma."
The offender relied upon the above passages in Ms Duffy's report as a possible explanation for the offending. There are three difficulties with Ms Duffy's evidence suggesting that the offender was in a dissociative state at the relevant time. First, it relies upon the offender's description of her state of mind at the relevant time. I have already found that the offender is not a reliable historian and other assertions made by her to police can be easily disproven by other evidence. Secondly, Mr Duffy does not opine that the offender was in some form of dissociative state at the relevant time; she suggests that she may have been. Thirdly, the offender has pleaded guilty to intending at the relevant time to kill the deceased. It is difficult to assess how an expert opinion that she was in a dissociative state sits with that plea.
I am not satisfied on the balance of probabilities that the offender was in a disassociate state at the relevant time.

[13]

Remorse/Rehabilitation/Risk of re-offending

Section 21A(3)(i) of the Sentencing Act provides that remorse can be taken into account as a mitigating factor but only if the offender has provided evidence that she has accepted responsibility for her actions and she has acknowledged any injury or loss, or damage caused by her actions or makes reparation for such injury loss or damage.
In her affidavit, the offender stated the following: "I am deeply sorry for my actions. I am sorry for my children, that I have taken their father away. I know their dad is not here with them anymore, and I will live with that for the rest of my life. I know my children will miss their dad dearly, as I miss mine. To [Joseph]'s family, from the bottom of my heart, I am very, very sorry for everything. Last but not least my family: to my parents and siblings, I know I have let you all down. I pray that you will forgive me and love me still. I am sorry for the pain I have caused. I pray to God that all the pain I have caused will be healed, especially the pain to [Joseph]'s family and my own. I am deeply sorry for everything."
Ms Duffy in her report noted that the offender had expressed regret and remorse and had handed herself into police following the death.
It was submitted on behalf of the Crown that I would not make any finding of remorse. It was submitted that the expressed regret is in relation to her children losing a father rather than any genuine remorse for what she did. Further, it was submitted that the offender lied to police in her ERISP and downplayed the circumstances of the killing. It was submitted that a plea of guilty of itself does not necessarily indicate remorse, especially where it is entered in the face of overwhelming evidence.
It is well established that an offender is not required to give sworn evidence in order to establish remorse: Butters v R [2010] NSWCCA 1 at [16]-[18] per Fullerton J (with whom McClellan CJ at CL and McCallum J agreed), and more recently CR v R [2020] NSWCCA 289 at [75] per Bellew J (with whom Hoeben CJ at CL and Harrison J agreed).
I have assessed the evidence before me relied upon to establish remorse. Although it is to be accepted that the expressions of remorse have not been "profound", that is not the relevant statutory test. I am satisfied that the offender is remorseful within the meaning of the Sentencing Act, and I would have regard to that as a mitigating factor on sentence.
As I recently observed in Pritchard v R [2022] NSWCCA 130 at [102], questions of remorse, rehabilitation and the risk of re-offending are often interconnected. Based on the material before me I am also satisfied that the offender has good prospects of rehabilitation and is unlikely to re-offend.

[14]

Victim impact statement

Section 30E(1) of the Sentencing Act provides that when a victim impact statement is tendered in relation to an offence, the court must consider the statement and may make any comment on the statement that the court considers appropriate. Section 30E(3) of the Sentencing Act provides that a victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community, but only if the prosecutor applies for this to occur, and the court considers it to be appropriate.
A number of victim impact statements were tendered to the court in this matter and the Crown submitted that they should be taken into account under s 30E(3) of the Sentencing Act. It was submitted that the fact that the offender knew that her actions would deprive her young daughters of their father is a fact otherwise relevant to the culpability of the offender: R v Lewis [2001] NSWCCA 448 at [67]. It was further noted that although her children forgive her and request leniency that is not a matter relevant to the proper exercise of the sentencing discretion: R v Newman [2004] NSWCCA 102 at [79]-[86].
A victim impact statement was read by the deceased's maternal aunt. She travelled to Australia from New Zealand to read the statement that the deceased's mother would otherwise have read. Sadly, the deceased's mother died suddenly on 5 March 2022 at the age of 59 years.
The deceased's aunt spoke fondly of the deceased and how he was the oldest grandchild and an only child. He was inseparable with his mother, they were like "peas in a pod". She described how the deceased was hoping to relocate his mother to Australia. She described how much the deceased's mother suffered and her health worsened after his death, and her mental capacity deteriorated until her grief-stricken heart gave up and she left them to be with her son. She explained how that has been a difficult journey for the extended family.
The deceased's children also provided written victim impact statements. Grace wrote a heartbreaking story about wanting to be a family again. She acknowledged that her mother had done the wrong thing but did not want her taken away from them. She said it is hard without her own mother because she knows her more than anyone else on earth. Another daughter, Gretel, spoke of being questioned by other people as to why her mum killed her dad and being questioned about being in foster care. She wished her dad was here so she could play with him and have fun. She just wanted to be a family again with her mother and father and grandmother. Another daughter, Elsa, spoke of missing her mother and wanting to see her again so they can spend time together as one big family and that she missed her father and grandmother. Finally, the youngest daughter, Naomi, wrote that when her father died, she was confused because her grandmother died too, and she finds that being in foster care is "weird".
The Sentencing Act does not explain how the court is to determine when it is "appropriate" to consider the impact of the offence on the deceased's family. As McCallum J (as her Honour then was) observed in R v Halloun [2014] NSWSC 1705 at [46], the provision cannot be taken to suggest that some lives are more valuable than others. All human lives are of equal value. Every unlawful death causes harm to the community and to the family of the person killed. In this matter I am prepared to have regard to the impact on the four young children left without a father due to the offender's actions.
It is clear that the deceased's senseless death has had a significant impact on those who loved him. No sentence that the court might impose could adequately reflect that loss and no sentence could possibly ease the grief of those who were close to him. On behalf the court, I extend my condolences to the family and friends of the deceased for their loss.

[15]

Comparable cases

The Crown relied on two cases which, it was submitted, would assist in the judicial task I am to perform, namely: Goodbun v R [2020] NSWCCA 77 and Wang v R [2021] NSWCCA 282. The offender relied on a large number of decisions. [2] I have considered them all. In the interests of transparency and insofar as they are relevant, I have briefly summarised some of them.
Despite the prevalence of domestic violence murders, all of the cases provided to me differed and none were directly comparable to this case. Despite this, I have found the principles derived from them to be of assistance. Unless stated otherwise, none of the offenders in the cases below had any mental illness or other significantly mitigating factor.
In Goodbun, the applicant pleaded guilty to the murder of his wife in October 2016 (he was aged 62; she was aged 59), as well as three related offences making up the aggregate sentence being contravene AVO, use unregistered firearm, and assault occasioning actual bodily harm. He was sentenced by Wilson J to 41 years and 6 months' imprisonment with a non-parole period of 31 years and 1 month; the indicative sentence for murder was 40 years and 6 months, arrived at after the application of a 25% discount for a guilty plea.
The applicant in Goodbun had limited criminal history. In 1984, he was dealt with for assault police and two firearms offences. Following the separation of the applicant and the deceased in 2015, there was a domestic incident in June 2016 after which the applicant was charged with property damage and assault of the deceased occasioning actual bodily harm. However, prior to this there were no known instances of physical violence from the applicant toward the deceased. As a result of the 2016 incident, the applicant was subject to an ADVO and granted bail, a condition of which was that he not return to the family home.
While on conditional liberty, the applicant resolved to kill his wife and travelled 250km at night with a rifle and large knife (and over ten litres of fuel, planning on burning down the family home). At about 3.00am, he arrived at the family home and struggled with his wife on the verandah, before shooting her a total of four times at close range. The shots were each separated by his eldest daughter pleading with him to stop. The applicant said, "I'm not gunna fuckin' help her, I hope she fuckin' dies". After the deceased was unresponsive and his daughter had fled, he poured himself a gin and was arrested a short time later. I consider those fact to be objectively more serious, in particular the use of firearm.
In Wang, the offender was in her late 20s when she murdered her ex-girlfriend in June 2019. The pair broke up in February after being in a relationship for approximately two years. Her general practitioner recorded that she suffered from an "adjustment disorder" with symptoms of "mixed anxiety and depressed mood". She had no criminal history. One evening in June 2019, the offender visited the deceased's apartment to collect some of her belongings. A fight ensued and, in an attempt to escape the apartment, the deceased fell from the fifth-floor balcony. She was unable to stand up but was still alive.
The offender came down and inspected the deceased. She then went upstairs and fetched a knife from her apartment, returned and proceeded to stab the deceased about 40 times, mainly to the neck, upper trunk, and arms. The deceased was screaming. The applicant left the scene. At no time did she attempt to render any assistance to the deceased. She was found the next day at the Sea Cliff Bridge in Coalcliff; she told a paramedic she wanted to end her life.
She pleaded guilty to murder. Beech-Jones J (as his Honour then was) sentenced her to imprisonment for 25 years and 6 months with a non-parole period of 19 years after the application of a 25% discount for the plea. It was accepted that the applicant showed some remorse. The appeal against sentence was dismissed.

R v Gina Kennedy

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (26 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (31)