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[2003] NSWSC 84
defendant. Convicted on pleas of guilty. Murder: head sentence 21 years 3 months, sentence to commence 13 April 2001, non-parole period 16 years to expire 12 April 2017. Assault occasioning actual bodily...
Kenning pleaded guilty to murdering his de facto partner after an extremely violent, sexually degrading assault. Whealy J found multiple aggravating circumstances (blunt instrument use, sexual mutilation, domestic violence history) and rejected claims the offender's heavy drinking or PTSD caused a blackout that mitigated culpability. The judge applied a 15% discount for the guilty plea, found no special circumstances to reduce the three-quarter non-parole rule, and sentenced Kenning to 21 years 3 months with a 16-year non-parole period (concurrent six months for the ABH).
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On the night of 12–13 April 2001 Albert Edward Kenning and his de facto partner, Elizabeth Maree Feltham, returned to Kenning's rural property after drinking at local hotels (see [7]–[11]). Two men, Michael Dempsey and David Karl Juhnke, accompanied them and were later present at the property. Kenning became suspicious that Feltham and Juhnke had been sexually intimate behind a shed (see [15]). What followed was a prolonged, extremely violent series of assaults on Feltham which continued into the house and bedroom area.
No linked legislation citations have been extracted yet.
The post-mortem and crime-scene evidence revealed extensive and horrific injuries: roughly forty-three areas of bruising, numerous lacerations, heavy injury to face and head, severe bruising to breasts, and traumatic injuries to the genitalia and anus, including foreign objects (carrot fragments) lodged in the airway, vagina and anal canal (see [22]–[27]). Juhnke was also struck with a branch and beaten (see [17], [31]). Kenning admitted some assaults during the ERISP but minimised the extent; the photographs and expert evidence demonstrated that the actual violence was far greater than his immediate admissions (see [28]–[34]).
Kenning was arrested and interviewed. He pleaded guilty to murder and to assault occasioning actual bodily harm on 5 February 2003 (see [3]). The sentencing hearing occurred before Whealy J on 20 February 2003, who imposed concurrent sentences: for murder a head term of 21 years 3 months, backdated to 13 April 2001, with a non-parole period of 16 years; and for the ABH a fixed term of six months concurrent with the murder sentence (see [95]–[98]).
The decision rests on classical sentencing analysis: identification of aggravating and mitigating features under the Crimes (Sentencing Procedure) Act and application of statutory constraints on non-parole fixation. Key elements driving the result were:
The gravity and nature of the offending. Whealy J repeatedly described the assault as "one of the worst beatings" he had encountered (see [35]). The use of a blunt object, the intrusion of objects into the victim's body (notably a carrot in the airway and trauma to genital and anal areas), and extreme sexual violence were taken as significant aggravating features that warranted a severe sentence (see [36], [40]–[41]).
Domestic violence context. The murder occurred in the context of an abusive domestic relationship where the offender had previously inflicted violence upon the deceased on multiple occasions. The judge accepted prior incidents of violence beyond reasonable doubt and treated this as an aggravator (see [37]–[38]).
Rejection of primary mitigating narrative. The offender relied on heavy drinking, post-traumatic stress from prior events, and alleged amnesia/blackout to mitigate culpability. The court considered expert reports (Dr Carne, Dr Westmore, Professor Starmer, Ms Plahn-Williamson) but concluded that the claimed dissociation/amnesia was not established. The judge emphasised that Kenning displayed decision-making capacity during the night (driving, searching for Feltham, rational interactions) and that his ERISP disclosures and later minimisation suggested repression and denial rather than genuine inability to recall (see [59]–[81]). Accordingly, alcohol and PTSD were not accepted as mitigating to reduce moral culpability (see [72]–[81]).
Guilty plea and other mitigation. Kenning's guilty pleas attracted a discount under s 22; the judge quantified that discount at 15% given the timing and circumstances ([82]). The limited prior record, some evidence of remorse, and rehabilitation prospects also counted in mitigation but did not outweigh the aggravating features (see [57], [58], [83]–[86]).
Statutory constraint on non-parole. Section 44(2) requires a non-parole period of at least three-quarters of the head sentence unless special circumstances exist. Whealy J found no special circumstances sufficient to reduce the three-quarter baseline and thus set the non-parole at 16 years, three-quarters of the head term after the plea discount was applied (see [88]–[91], [95]).
The sentencing calculus: a notional 25-year head sentence was assessed as appropriate absent a plea discount. Applying a 15% reduction for the guilty plea produced the operative head sentence of 21 years 3 months with the statutory three-quarter non-parole minimum of 16 years (see [95]).
Before this decision, standard sentencing principles under the Crimes (Sentencing Procedure) Act (s 21A factors, s 22 plea discounts, s 28 victim-impact limitations, s 44 non-parole rules) were already settled statutory law. Whealy J applied those statutory principles and the authority of earlier decisions (Regina v Previtera; Bollen v Regina for victim-impact treatment and Appeal of Coleman for guidance on intoxication) (see [50], [80]).
This judgment does not create new statutory law. It does, however, reaffirm and exemplify established lines of reasoning:
It reiterates that victim-impact statements, while relevant for context, must not be used to increase the penalty beyond what would otherwise be appropriate (see [50]).
It applies the three-quarter rule under s 44(2) strictly, noting that ordinary mitigation (first imprisonment, family separation, depression, rehabilitation prospects) did not amount to 'special circumstances' (see [88]–[91]).
It illustrates a robust approach to voluntary intoxication as limited mitigation where evidence shows tolerance and continuing capacity for deliberate action (see [73]–[81], and the citation to Appeal of Coleman at [80]).
Thus, the case stands as a strong example of how courts treat severe domestic murders involving sexual mutilation and the limits of intoxication-based mitigation in sentencing.
Passage: "I do not, however, consider that it is appropriate to have regard to the contents of those statements in determining what sentence should be passed..." (see [50]).
Passage: "Let me say quite clearly that I do not accept that during the attack the offender suffered some form of amnesia or dissociation..." (see [73]).
Passage: "For the foregoing reasons I have come to the conclusion that alcohol is not to be regarded as a mitigating factor..." (see [80]).
Passage: "I have determined that, without the discount for plea, a head sentence of twenty-five years would be appropriate... Applying a discount of 15 per cent..." (see [95]).
Passage: "I have to say that this is one of the worst beatings I have encountered..." (see [35]).
This decision is most directly informative where the following facts appear in a murder sentencing:
Where such a constellation exists, this judgment shows that courts will treat the case as highly aggravated, will scrutinise intoxication claims skeptically (particularly where tolerance and rational conduct are evident), and will be inclined to impose a lengthy head sentence and a full three-quarter non-parole period absent compelling special circumstances.
This judgment itself does not report later appellate treatment nor purport to alter binding authority. Within the reasons, Whealy J relied on Previtera and Bollen for victim-impact treatment and Appeal of Coleman regarding alcohol, indicating alignment with existing sentencing jurisprudence (see [50], [80]). The decision functions as a district-level exemplar in sentencing practice rather than a novel precedent; subsequent courts citing Kenning would likely treat it as an application of settled propositions about aggravation, plea discounts, victim-impact limitations, and the limited mitigating force of voluntary intoxication where the offender demonstrates capacity.
Note: the judgment does not record later appellate consideration of Kenning; practitioners should check post-2003 authorities for any appellate commentary.
Special circumstances threshold. Whealy J held that ordinary mitigation (depression, family separation, first full-time term of imprisonment, rehabilitation prospects) did not meet the 'special circumstances' threshold under s 44(2) (see [88]–[91]). That raises how much mitigation must be demonstrated to displace the three-quarter minimum, a fact-sensitive question that remains open in borderline cases.
Quantification of plea discounts. The judge adopted a 15% discount for a late plea. While this was justified in the reasons ([82]–[83]), sentencing courts continue to exercise broad discretion in quantifying s 22 discounts. Practitioners should note the factors the judge considered (timing of plea, seriousness of offence, assistance to prosecution), but exact percentages remain variable.
Voluntary intoxication and dissociation. Whealy J rejected blackout/dissociation on the facts here, emphasising observable rational acts and prior tolerance. The boundary at which intoxication or a psychiatric state sufficiently undermines culpability, or supports a defence, remains a live legal and forensic issue. Courts will continue to require detailed contemporaneous evidence to accept such mitigation.
Use of expert evidence on amnesia. The judgment shows careful weighing of expert opinions against contemporaneous conduct and ERISP content (see [59]–[81]). Questions remain about how courts should balance competing expert views on memory loss and dissociation, particularly where there is limited independent corroboration.
Concluding note: Regina v Kenning is a clear, fact-rooted sentencing decision that reaffirms statutory sentencing mechanics and sets out a robust approach to the aggravating impact of sexualised violence in domestic homicide, and the limited mitigating value of voluntary intoxication where the offender manifested rational conduct and a history of tolerance.
CITATION : Regina v Kenning [2003] NSWSC 84 HEARING DATE(S) : 05/02/03, 06/02/03, 17/02/03 JUDGMENT DATE : 20 February 2003
JUDGMENT OF : Whealy J at 1 DECISION : Albert Edward Kenning, in relation to the charge of murder, I sentence you to a head term of imprisonment of 21 years and 3 months. The sentence is to commence from 13 April 2001. I set a non-parole period of 16 years to expire on 12 April 2017. The date you will be eligible for parole is 12 April 2017; In relation to the conviction for the charge that you did assault David Karl Juhnke thereby occasioning him acctual bodily harm. I sentence you to a fixed term of imprisonment of 6 months to date from today's date. This sentence is to be served concurrently with the sentence in relation to the murder conviction.
CATCHWORDS : Plea to murder charge - Please to charge of occasioning actual bodily harm LEGISLATION CITED : Crimes (Sentencing Procedure Act 1990 Regina v Previtera (1997) 94 ACR 76 CASES CITED : Bollen v Regina (1998) 99 ACR 510 Appeal of Coleman (1990) 47 A Crim R 306 at 327 PARTIES : Regina v Albert Edward Kenning FILE NUMBER(S) : SC 70057/02 COUNSEL : Mr P Barnett - Crown Mr T. Healey - Offender SOLICITORS : Office of the Solicitor for Public Prosecutions - Crown Bilbie Dan - Offender
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST
1 HIS HONOUR: I will now proceed to the imposition of sentence in relation to the two matters in respect of which Mr Kenning has been convicted. 2 The offender Albert Edward Kenning was indicted before me on the following charges: (1) That on 13 April 2001 at Belbora in the State of New South Wales he assaulted David Karl Juhnke, thereby occasioning him actual bodily harm. (2) That on 13 April 2001 at Belbora in the State of New South Wales he did murder Elizabeth Maree Feltham. 3 On Wednesday 5 February 2003 the offender pleaded guilty to each of the charges. He was convicted on that day in relation to each charge. 4 It falls now for this Court to pronounce sentence in relation to each conviction. The genesis of the tragic events of 13 April 2001 are to be found in the troubled relationship between the offender and the deceased. They had been together in a de facto relationship for about three years prior to the murder. The offender said in his record of interview with the police that the relationship had been really good, but over the last year it had been "rocky". I find, however, that it was a relationship punctuated by violence on the part of the offender, and in which alcohol may have played a significant part. 5 It appears that the offender was often very jealous of the deceased and on occasions accused her of infidelity. On one occasion at least the deceased had a relationship with another man, so there was at least some warrant for his fears. These accusations were often accompanied by arguments, and sometimes violence. 6 For a short period before April 2001 the deceased had been living away from the home they had been sharing at Titaatee Creek Road at Belbora. She had been staying at Belmont with her sister. In the week leading up to Easter 2001 they were again living together at Belbora. 7 In the afternoon of Easter Thursday, 12 April 2001, two men, Michael Dempsey and Karl Juhnke, left West Wallsend, intending to travel to Mount George. It was their intention to spend the Easter weekend there. They travelled through Clarencetown and Gloucester on their way to Mount George. They were, however, confronted by a bridge which had become impassable. This required them to drive back and find another way to their destination. As it happened, they came to the village of Krambach. Here they stopped at the local hotel, where they stayed some time, drinking together. 8 The offender and Ms Feltham happened by chance to come to the Krambach hotel that afternoon. They had been drinking at Nabiac, but because there were no seats inside the hotel and it was a cold day outside they decided to move on to the Krambach hotel. 9 After a time, Mr Dempsey and Mr Juhnke found themselves in the company of the offender and the deceased, whom they did not previously know. They drank and spoke together for several hours. Around midnight the hotel was closing. When the two men were asked where they were intending to stay the night, they indicated they proposed to stay the night in or around their car. 10 An invitation was extended to them, probably by the deceased, to accompany Ms Feltham and the offender to their residence at Belbora where the two men could stay the night. The four travelled in the offender's motor car to Belbora. Once at the property the foursome entered the residence, where more alcohol was consumed by all. It seems the offender and Ms Feltham had been drinking Wild Turkey during the afternoon and evening. She had bought a large bottle of Wild Turkey and bottles of Coke before they had left the Krambach hotel. 11 Eventually Mr Dempsey fell asleep. The others continued to drink. Mr Juhnke left the premises as he needed to urinate. For some time he was looking for his dog, which had accompanied the group in the car from Krambach. He heard somebody sobbing around the side of the shed and found Ms Feltham there. It appears that she was unhappy and seeking company and consolation. It appears that no sexual activity occurred between them, but Mr Juhnke remained with her, talking, cuddling and consoling her. After some time Mr Juhnke fell asleep on the ground, or it may be more accurate to say that he passed out. 12 In the meantime, Mr Dempsey had awoken inside the house. He found himself alone there. He also went out to urinate. He came across the offender outside, who asked Mr Dempsey if he had seen the deceased. Mr Dempsey said he had seen no one. After some time Mr Dempsey heard a car drive off, and it is apparent that it was the offender who had driven off in the car and was looking for Ms Feltham. 13 Shortly afterwards Mr Dempsey came across Ms Feltham and Mr Juhnke down by the side of the shed. After some discussion with them Mr Dempsey decided to leave. He returned to the house and obtained his sleeping bag. He then proceeded to walk along the road to Krambach. 14 After about half an hour the offender and Mr Dempsey came across one another. The offender was by now driving back towards the property as he had not been able to locate Ms Feltham. Mr Dempsey told the offender that he had seen Ms Feltham back at the property. The offender drove back in the direction of the property, whereas Mr Dempsey continued walking until he found a shed with an awning where he lay down and went to sleep again. 15 It is clear that the offender, shortly after his return, encountered the deceased and Mr Juhnke down by the side of the shed. Despite the fact that both were fully clothed, the offender obviously came to the conclusion that the deceased had been having sex with Mr Juhnke behind the shed. This led to the commencement of a prolonged and violent series of assaults on the deceased which ultimately led to her death. I might add that there can be no real justification for the offender forming the view that he did, and certainly no objective justification for the continuing belief throughout the series of assaults that followed. 16 Mr Juhnke, who had been lying asleep on the ground, awoke to the sound of the offender yelling and Ms Feltham screaming. The offender was calling the deceased "a moll", "a slut", and accused her of having sex with Mr Juhnke. She denied that this was so. 17 The offender picked up the branch of a tree which was about a metre long. He told Mr Juhnke to "piss off". Mr Juhnke attempted to explain that he had been doing no more than talking to the deceased, but the offender spoke to him angrily and then commenced to hit Mr Juhnke with the tree branch. Mr Juhnke was struck on the left forearm, the right upper arm and on the left upper leg. 18 At this stage Mr Juhnke decided to get out of the situation. He ran away from the house and from where the cars were parked. He stopped some distance away out near a big tree on the property. He was still able to hear a lot of banging and screaming. Mr Juhnke could hear the offender angrily abusing Ms Feltham and she in turn was screaming and asking him to stop. 19 Apparently Mr Juhnke fell asleep again. When he woke it was getting light. It was in the vicinity of six o'clock. He walked away from the property and came to a house some distance away where he asked the occupant, Mr Colin Ashman, whether he could telephone the police and report the attack on him and on the deceased. 20 At about 6.20am on Friday 13 April 2001 Gordon Wiblin, who was a friend of the offender, received a telephone call from him. The offender told Mr Wiblin that he thought that he had killed Ms Feltham and he asked if Mr Wiblin could come out to the property. Mr Wiblin contacted other friends and they all travelled to the home of the offender. His wife, Leanne Wiblin, came as well. They met the offender at the front door of the house. He indicated that Ms Feltham was in the bedroom but that he thought she was dead. 21 Ms Wiblin examined the body and then rang the police and ambulance. The group remained at the property while awaiting the arrival of the ambulance. They were calming the offender, who by now was hysterical. He admitted that it was he who had killed Ms Feltham and during this time he expressed remorse and spoke of killing himself. In fact, he asked some of those present to kill him. 22 The police and ambulance arrived at the scene shortly after 8am. The condition of the deceased's body is plainly to be seen in the photographs and in the video that was taken at the crime scene by police photographers. These demonstrate in the most graphic manner that Ms Feltham had been bashed and injured in the most savage way possible. Her face and head were battered almost beyond recognition. There was blood everywhere, both in the house and out in the yard. The bed and the surrounding area in the bedroom were covered in blood. 23 The deceased had some forty-three areas of bruising over her body. Both her eyes were completely black. There was an extensive area of bruising and abrasions over her abdomen and chest areas, including the shoulders and the breast. 24 There were significant abrasions to the genital areas. In all there were fifteen areas of laceration noted, including lacerations to the anal opening and within the anus itself. There were over thirty-seven areas of abrasions identified on the body. 25 It seems that a carrot had been rammed into the deceased's mouth. A single fragment of the carrot was virtually occluding the left main bronchus. An area above the soft palate opening into the nasal cavity was completely occluded by a carrot 5 centimetres long and 2 centimetres in diameter. 26 There were lacerations internally in the deceased's anal canal. The anal opening had been distended 6.5 centimetres in diameter. The external genitalia had been bruised and abraded substantially and there were vaginal lacerations extending for 11 centimetres along the inner length of the vaginal barrel. There was a carrot lodged transversely across the vagina, 6.2 centimetres long and 2 centimetres across. 27 At post mortem internal examination showed heavy bruising to both breasts in the area underlying the external injuries and heavy bruising to many other parts of the body, including the left wrist and the mid to lower back. There was light bruising on other areas of the body, including the buttocks, neck and shoulder blades. 28 Admissions by the offender during an ERISP conducted on 13 April 2001 at Taree Police Station included his assertions that outside in the yard when he had confronted Ms Feltham he had hit her across the face with his open hand and pushed her to the ground. He had taken her jeans, underwear and top off to see if she had been having sex. He said that after he had disrobed Ms Feltham they had gone into the house and he had inserted his hand into her vagina to see if she had had sex. He said she became upset and had bitten his finger. He said that he then pulled her over towards a bed in the shed and kicked her three times in the backside. She was naked at the time. He then punched her a couple of times in the face and she had fallen over near the wardrobe. 29 When he went back and picked her up he realised that something was wrong and he presumed that she was dead. He said that he did not assault her once she was on the bed. He claimed he did not see any injuries on her when they had been outside. However, he conceded that she was bleeding but he did not know the cause. 30 The offender told the police in the record of interview that he had not assaulted her other than as described above and he denied that he had hit her with a piece of branch or any other object. 31 Now as I have said, the photographs and video graphically show that the deceased had sustained the most horrific injuries in this series of violent assaults. It is clear from the scene outside the house and the position of the blood, both outside and inside the house, that the assaults had in fact continued over an extended area. Although the offender maintained that he did not continue his attack upon the deceased when she was on the bed in the house, I am satisfied that he did. It is also quite apparent that he struck and kicked her many more times than he was prepared to admit in his record of interview. It is also inevitably the fact that he used some other implement or implements to assault her. 32 The evidence of Dr Lee, the Senior Forensic Pathologist from the Newcastle Department of Forensic Medicine, makes it clear that many of the abrasions on the body would not have been caused either by the fists or the boots of the offender. Rather, they were caused by some other blunt object such as the piece of firewood that was exhibited in court. 33 I am unable to say with any certainty what the blunt object was but it is quite clear that the deceased was beaten with some other object besides the offender's hands and feet. It is also quite apparent that some object was forced into her anus and vagina, although I am unable to determine with any certainty what it was. 34 The consequence of these findings is that the offender was not frank and candid with the police during his ERISP. Although he admitted hitting and striking the deceased, he certainly did not reveal the full extent of his violent attack. The results, however, are spelt out in the most gruesome manner possible in the photographs and video to which I have referred. 35 I have to say that this is one of the worst beatings I have encountered in my experience as a judge. I cannot recall any other occasion where the injuries were so extensive, so severe and so cruelly inflicted. It must be remembered as well that the offender is a tall, well-built man and that the deceased was a small, petite, pretty woman. Not only was the ferocity of the attack upon her singularly vicious, it was cowardly as well. 36 The Crown has argued that there were a number of aggravating features in relation to this murder. It is apparent from the remarks that I have made that I agree that this is so. The fact that some sort of blunt instrument was used in the battering of the deceased and the intrusion of objects into her body are clearly aggravating factors of the murderous attack perpetrated upon the deceased by the offender. 37 Secondly, the crime was one of domestic violence, committed in circumstances where there had been domestic violence inflicted upon the deceased at earlier points of time. These had occurred in Victoria on or about 19 August 2000 at Dunolly; on or about 21 March 2001 when the deceased attended the Gloucester Medical Centre and required stitching for injuries she had received to her face; and finally the incident on or about 29 March 2001 when the deceased was treated at Manning Base Hospital. 38 I am satisfied beyond reasonable doubt that violence was inflicted upon the deceased on each of these occasions. 39 There is a tragic irony in relation to this last visit at Manning Base Hospital. On that occasion, in conversations with a social worker Cynthia Coombe and her associate Christopher Moore, the deceased was warned that the social workers held grave fears and concerns for her safety. In fact Ms Coombe said to the deceased, "Elizabeth, if you do not leave this relationship, Chris and I will see you in the morgue within three months. That is, Elizabeth, you will come in in a body bag." It appears, however, that the deceased insisted she could control the difficulty she was having with her partner. 40 The third aggravating feature is that the attack involved extreme sexual violence. It is quite clear that the offender deliberately bashed the deceased's face almost beyond recognition. He attacked her genitalia, her anus and breasts in a manner which suggests that he intended to inflict punishment and ruin on her sexuality. 41 I am in this context quite satisfied beyond reasonable doubt that these injuries were inflicted on the deceased while she was still alive. The medical evidence in all respects supports that this was so. 42 In relation to each of the matters I have identified I am satisfied that the acceptance of those aggravating features has been proved beyond reasonable doubt. 43 There were two submissions made by the Crown in relation to the aggravating features which I have not accepted. I do not accept beyond reasonable doubt that it can be said that the attack by the offender upon the deceased was prolonged, deliberate and systematic rather than being a frenzied, random attack. There is no doubt, as I have already said, that there was a series of assaults and that they were deliberate in the sense that the offender well knew what he was doing. His intention was to disfigure the features of the deceased and to assault her sexually, as if to punish her for her attractiveness to other men and to make her less attractive by virtue of the beating that he was giving her. 44 But at the same time I think he was in a state of frenzy and rage, rather than acting in a cold-blooded, planned, pre-meditated, deliberate way. Alcohol clearly played a large part in his behaviour, and I shall have something further to say on this subject when I consider the submissions regarding mitigating features. 45 Secondly, I cannot be satisfied beyond reasonable doubt that the offender washed himself and reshod himself, as has been submitted. It looks to me very much that he may well have done so, but I cannot say that I am satisfied beyond reasonable doubt that this was the case. Certainly it becomes explicable as to why his trousers were not stained with blood and why his shoes were not similarly bloodstained, but the evidence falls short of enabling me to make a finding beyond reasonable doubt in this regard. 46 I do accept, however, that the offender's intention was to inflict grievous bodily harm on the deceased at the highest possible level. Therefore, as a consequence, while he may not have intended to kill her at the outset of the battery, or even during it, the level of criminality was very high indeed. The ferocity of the attack, the use of blunt implements, the insertion of the carrot into her throat, the mutilation of her genitalia and other parts of her body reflect criminality of a very high order. 47 I shall turn in a moment to consider the offender's subjective features and the submissions that have been made in relation to factors in mitigation. Before doing so, however, it is necessary for me to refer to the victim impact statements. I have been supplied with a series of victim impact statements. First there is a statement from their father of the deceased's three children, Mr Christiansen. The statement was made not only on his behalf but also on behalf of the three children, Adam, Sean and Demi. 48 The next statement is from Janette Shirlaw. She is the sister of the deceased. There is also a statement from her sister, Christine Pearson. The final statements are from Mavville Chadban who is the stepfather of the deceased, and Judith Chadban, who is her mother. 49 These statements all movingly inform the Court of the profound and significant effect this tragic and entirely unnecessary death has had on all the family members. The Court can only begin to guess at the trauma and grief this dreadful occurrence has had on those people who obviously deeply loved and cherished Elizabeth Feltham. It is to be hoped that the opportunity to express these very deep-felt matters of grief and loss may help in some way to assuage the tragedy that has befallen the members of this loving family. 50 I do not, however, consider that it is appropriate to have regard to the contents of those statements in determining what sentence should be passed (see s 28(4)(B) of the Crimes (Sentencing Procedure) Act 1990; Regina v Previtera (1997) 94 ACR 76; Bollen v Regina (1998) 99 ACR 510). 51 I should make it clear that the material was not admitted for the purpose of increasing the penalty otherwise appropriate to the crimes, and has not been taken into account or used by me to aggravate the severity of the crimes. 52 I turn now to the subjective circumstances. The offender was born on 30 April 1962. He will turn forty-one in approximately two months time. The offender was brought up in Charlestown near Newcastle. He was the eldest of four children. His father was a refrigeration mechanic. It seems that he was a happy child and not exposed to early childhood trauma such as violence or sexual abuse. He had good relationships with his parents and his younger siblings. He was educated at Charlestown Public School and Broadmeadow High School. He was not particularly academic but was always good at and interested in sports. He left school in Year 10. He was a keen rugby league player and good at athletics and had an interest in fishing and rock music. 53 After leaving school, the offender tried to obtain an apprenticeship but was not able to achieve this. He had a variety of jobs, his most significant being that of a machinery operator at the Bradmill Textile factory for about nine years. He also did some gold prospecting in different parts of Australia. 54 The offender had married his first wife Blazenka when he was eighteen. That marriage lasted some seventeen years and produced three children. Blazenka, however, suffered a severe mental illness and spent some time in the James Fletcher Hospital. Eventually she committed suicide by hanging herself. The offender found her hanging from a tree on the property at Belbora. This tragic occurrence happened in September 1997. The offender had been a heavy drinker even before this event, but there is evidence that he was depressed afterwards and may have increased his drinking. 55 The offender developed a relationship with Elizabeth Feltham in 1998. They had met each other about two years previously. Elizabeth had three children of her own. They were living with her ex-husband. The deceased moved in with the offender and two of his children at the property at Belbora, although one of the children left some time later. 56 Initially the relationship seemed to be a happy one but, as I have indicated earlier, in the last twelve months of the relationship there developed a pattern of violence, often in the context of heavy drinking, and suggestions, imagined or otherwise, of infidelity on the part of the deceased. 57 The offender has only a minor criminal record. Apart from a conviction for offensive conduct (fighting) for which he was fined a small sum, the matters recorded against him generally relate to offences involving cannabis and alcohol. For example, he has two convictions relating to the driving of a motor vehicle with a high prescribed concentration of alcohol. Generally, the offender is able to point to his criminal record as being in his favour, especially in the area of violence. 58 The offender has been in custody since 13 April 2001. It is to his credit that during this period of nearly two years he has undertaken a number of courses and received certificates in approximately twelve areas of participation, including anger management, literacy, writing, and alcohol and drug relapse prevention. 59 The principal arguments in relation to mitigating factors relate to opinions expressed by a number of experts. They are Dr Jonathan Carne, forensic psychiatrist, Dr Bruce Westmore, a forensic psychiatrist, Associate Professor Graham Starmer, a consultant pharmacologist, and that of Ms Marianne Plahn-Williamson, a clinical psychologist. 60 The genesis of the matters relied upon emerges from the earlier report of Dr Olav Nielssen, forensic psychiatrist. He saw the offender on 4 May 2001, not long after he had gone into custody. He provided a report on 10 May 2001. According to this report, the offender had reported a significant alcohol abuse disorder and said also that he was a chronic cannabis user. Dr Nielssen said: "Mr Kenning appeared depressed at interview, assessed to be in proportion to his circumstances. There were no objective signs of psychotic illness or brain damage. He had not had any form of psychiatric treatment while in gaol. He said that he had not intended to kill his partner and that he attempted to resuscitate her after he realised that she was not breathing." 61 Dr Carne took these themes up in a report dated 3 September 2002. He referred to the offender as having a drug and alcohol history. At p 3 of his report he said: "Mr Kenning only started drinking heavily following the suicide of his wife in 1997. He entered the relationship with Elizabeth Feltham who was a heavy drinker and they drank together. His alcohol consumption increased to the level of, together with his wife, drinking up to a bottle of spirits (48 per cent alcohol; Wild Turkey) in an evening." 62 Dr Carne then cited a history given to him by the offender relating to his relationship with the deceased. This history follows a pattern which continued into the later expert reports. It may briefly be described as allegations of unfaithful behaviour by Elizabeth leading to significant unhappiness and depression on the part of the offender. 63 The Crown was at pains to say in relation to this and other reports that it did not accept the history of the relationship, or indeed the history of the events of 12/13 April 2001 as described in the history given in these reports. It was on this basis that the reports were admitted into evidence. It is fair, however, to say that the history given by the offender to Dr Carne and the other experts tends to lay the blame for the problems in the relationship on Elizabeth, although the offender admits on occasions having struck her. 64 The history given to Dr Carne by the offender as to the events of 12 April 2001 includes an assertion that in the bedroom the deceased invited the offender to check her internally as to whether she had or had not had sex with Mr Juhnke. The offender said that he had made this internal examination in response to the deceased's invitation, at which point he was bitten by the deceased, who also spoke to him in a very offensive and provocative manner and spat on him. Even more significant is the suggestion made in this history that the offender had no recall of subsequent events from this point on, until some time later he found himself pacing around the room, screaming at Elizabeth, who was sitting on the ground with her back up against the wall, not moving, and obviously deceased. 65 These matters of history appear to have raised for the first time the suggestion that the offender sustained a period of amnesia for about two hours. Dr Carne said this might be explained by a blackout as a result of his level of intoxication or it might be explained by a period of dissociation. This possibility led Dr Carne to surmise as to a number of defences that might have been available to the accused in relation to his forthcoming trial. 66 Dr Bruce Westmore saw the offender in the Long Bay Prison Complex on 17 December 2002. He provided a report on 30 December 2002. In the history provided by the offender to Dr Westmore the same story was repeated as I have described briefly above. In particular, the offender told Dr Westmore that from the moment when he was insulted and spat upon in the bedroom he had no memory of what next happened until he realised the deceased was dead. 67 Dr Westmore, however, was more circumspect on the possibility that the history given to him provided the offender with a number of possible defences. He accepted that the offender had suffered alcohol abuse and consumed illicit drugs during his lifetime. He accepted Dr Nielssen's observations that Mr Kenning was depressed at interview but that this was at an appropriate level. In relation to the suggestion that there were two possible missing hours in the offender's memory on the night of the murder, he said this: "Dr Carne raises the possibility of automatism although that condition is unlikely in my view as Mr Kenning has some memories of striking Elizabeth. While all details of the incident appear not to be available to him at this time, there are many possible explanations including alcohol-induced amnesia, the role of mental mechanism such as repression, suppression and denial and the memory loss which is generally seen when people are in high states of arousal, agitation or during aggressive incidents." 68 Dr Westmore rejected the possibility that there was a defence of substantial impairment available to the offender but noted that alcohol may have impaired his judgment and that may be a factor of relevance when the matter went to court. He noted, however, that although the offender had a regular history of heavy alcohol consumption he would have no doubt had a degree of tolerance to alcohol. 69 The pharmacology report dated 12 January 2003 took up the issue of alcoholic consumption. Professor Starmer considers a number of scenarios that may have been possible having regard to the amount of alcohol consumed by the offender. For this purpose, he has relied upon the history of alcohol consumption given to him by the offender. Importantly, he was also given a similar history regarding a period of complete absence of recall which occurred during the argument between the offender and the deceased. At p 4 of his report he said: "It appeared there might have been a period of amnesia of up to two hours. Dr Carne considered that this could be explained by an alcoholic blackout or by a period of dissociation. Complete memory loss is often associated with gross alcohol intoxication. An alcoholic blackout is defined as the temporary, complete inability to form long-term memory as the result of a high blood alcohol level. Blackouts are frequent in the heavy alcohol user although they can also occur in a social user of alcohol. It has been demonstrated that large amounts of alcohol block memory formation. This blockage results in an inability to place any events that occur while under the influence of alcohol into any memory store. A blackout is not really forgetting, rather it is not remembering." 70 Professor Starmer's conclusion was that the offender appeared to have been grossly intoxicated at the time of the incident. His report, characteristically, accepted that alcohol is almost never sufficient of itself to account for violence but is one of several factors which may act in combination. He described the combination and the effects it may have on a person in a situation of conflict and stress. 71 The last report is from Ms Plahn-Williamson. It deals with a different matter. It is a report in which this expert formed the view that the offender may have been suffering from post-traumatic stress syndrome following upon the suicide of his first wife. The symptoms she described as in the moderate to severe range. She, too, was given a history of the offender being unable to remember the significant part of the evening during the murder of Elizabeth Feltham. She thought that the PTSD symptoms may have increased his susceptibility for dissociation and amnesia when exposed to traumatic experiences. As did the other experts, Ms Plahn-Williamson raised the prospect of provocation but again based this upon the specific incident described to her by the offender in the history he gave her. 72 Mr Healey, counsel for the offender, has asked me to find in mitigation of the offender's position that the excessive consumption of alcohol by the offender on the evening in question significantly affected his judgment and that his actions should be seen in that light. Secondly, he has argued that the levels of alcoholic affectation, together with the post traumatic stress conditions suffered by the offender, in combination with the events of the evening of 12 April 2001, have resulted in the offender being genuinely unable to recall precisely what happened during that part of the evening when the deceased lost her life. This was referred to in submissions as "the black hole". 73 Let me say quite clearly that I do not accept that during the attack the offender suffered some form of amnesia or dissociation caused by excessive alcohol or by his post traumatic stress condition. I can readily accept that he had consumed a considerable amount of alcohol, and this no doubt would have had an impact on him, but he was very used to excessive alcohol consumption and, for the most part, appears on this evening to have been tolerant to it, as I will explain. 74 I can also accept that he was generally depressed and upset as a consequence of a number of factors in his life that were causing him trouble. These included the effects of the suicide of his first wife and the apparent infidelity of his second partner. But I reject entirely the suggestion that the offender fell into some kind of "black hole" during the evening at the time when he was so savagely beating his wife. 75 This is made clear by a number of matters. First, the electronically recorded interview with the police from p 27 through to p 36 indicates quite clearly that the offender was able to describe to police the fact that he both struck and kicked the deceased while they were in the house together. I might add that at p 33 he described the incident where he was bitten on the finger by the deceased but he made no mention in that interview, conducted very shortly after the events, of the provocative remarks that he later ascribed to her during his interview with Dr Carne. Additionally, his description of his placing his hand inside her vagina to see whether she had had sex with another person is not described as an action carried out in response to an invitation by the deceased. Far from it. His description of this incident in the ERISP is consistent with it having been an uninvited, unwanted and aggressive assault. 76 Secondly, the offender made a number of quite rational decisions on that evening, notwithstanding the alcohol he had consumed. For example, he decided to go looking for Elizabeth when she had gone missing from inside the house. He spoke to Mr Dempsey and then decided to drive down the road towards Gloucester to see if he could locate her. Later he changed his mind and decided to return to the property. He had a further conversation with Mr Dempsey out on the road regarding Elizabeth's whereabouts. During these incidents and conversations it was necessary for him to traverse the Bucketts Way, which is a narrow, winding road. He had to do so at night time. Similarly when he returned to the property he had to negotiate a difficult driveway. There is no suggestion that he had any problem with any of these driving activities despite the amount of alcohol he had consumed. Nor is there any suggestion in the description made of him by Mr Dempsey to suggest that he was grossly affected by alcohol. 77 Finally, his attack on Mr Juhnke was clearly an attack made as a consequence of a rational decision to scare him off the property so he could turn his attention to the deceased. 78 All these matters taken in conjunction make it clear that the offender was not so badly affected by alcohol that he was incapable of making rational decisions and acting upon them. Secondly, the interview in the ERISP makes it quite clear that he had a clear recall of what had happened in the bedroom in the house, although there is no doubt he did not tell the police the full story of the extent of the beating he gave his wife there. Certainly, he knew he had hit and kicked her and that he did so after she had bitten him on the finger. This is quite different from the story given to the experts in relation to the interviews conducted for the preparation of the trial. 79 The offender's mother gave evidence. She suggested that she had on occasions seen him blackout after he had been drinking excessive alcohol. These blackouts, however, were situations when the offender simply fell asleep or passed out after a considerable amount of drinking. They were to be contrasted with the assertion made in the history given to the experts that the offender, while in the process of brutally kicking and beating his wife to death in the bedroom, suffered some sort of blackout during the process or shortly after it. There is no consistency between the situation described by Mrs Kenning and that which occurred on 12 April 2001. Nor, on the whole of the evidence, do I accept, despite the assertion made at p 2 of ex 5, that I can be satisfied that the offender was suffering from some type of brain deterioration at the time of the attack on his wife. The overall impression I am given by the totality of the expert evidence is that the offender does not suffer from brain damage. 80 For the foregoing reasons I have come to the conclusion that alcohol is not to be regarded as a mitigating factor in relation to this matter. There is no doubt that the offender was well-affected by alcohol, but he showed a remarkable tolerance to it. More importantly, he was no stranger to alcohol, nor to the impact it had on him when he was thrown into a jealous rage (see Appeal of Coleman (1990) 47 A Crim R 306 at 327). At the same time I am not satisfied beyond reasonable doubt that I can regard the consumption of alcohol by the offender on this night as an aggravating factor, as the Crown has argued. It might be said that the offender knew that alcohol affected him badly, that it made him more jealous and possessive towards Elizabeth, that he knew that in the past he had become angry and violent towards her when questions of her fidelity came up, especially during or after drinking sessions. All this is true, but there was no occasion in the past that satisfies me beyond reasonable doubt that the offender had reacted to the extent he did on this evening in April 2001. I consider that his own rage, anger and jealousy must have overwhelmed him on this occasion in a way that it had never done before. 81 Finally, it is necessary to say that I consider that the offender in the ERISP deliberately minimised that which he had done to Elizabeth and that the statements he made to the various experts as to his inability to recall fully the events of that evening are part and parcel of an attempt he has made since his imprisonment to block out the enormity of his actions. I consider that Dr Westmore's assessment in this regard is likely to be the correct one, namely that the offender has repressed and denied to himself the full ambit of his atrocious actions, and in that sense he has not at this stage fully faced up to them. I can well understand why that may be so. 82 There remain, however, some matters of mitigation that must be taken into account in the offender's favour. There is firstly the offender's lack of significant criminal history, especially in relation to matters of violence. Secondly, there is the fact that the offender has pleaded guilty to the two charges brought against him. It is true that those pleas have been entered relatively late in the piece, but in my view the provisions of s 22 of the Crimes (Sentencing Procedure) Act 1999 require that the offender obtain a discount for his plea in relation to each matter. Neither counsel disagreed with this proposition but it is fair to say that neither counsel was prepared to quantify this discount. In my view, a discount of 15 per cent is appropriate in relation to the plea. 83 Thirdly, there is the element of remorse. This is a difficult issue in this particular case. I have no doubt, reading the ERISP and the statements of people who were present at the house in the early hours of the morning following the death of Elizabeth, that the offender exhibited at that time considerable signs of remorse and contrition. He did not give evidence before me and, as is not uncommon, his counsel made an impassioned and eloquent plea before the Court, including assertions of the extent and depth of the offender's remorse. I must, of course, give those expressions weight but it is to be recalled that they are the words of counsel and not the words of the offender. In addition, there are expressions of remorse contained in the history given to the various experts whose reports I have referred to in detail. There is, as well, the plea of guilty which itself is an indication of remorse. 84 On the other hand, the offender did not fully reveal the extent of his attack when interviewed by the police during the ERISP. Further, he has since taken up an attitude of being unable to recall fully what was done. In addition he has, during his interviews with the various experts, tended to shift the blame onto Elizabeth Feltham, at least to some degree. In my view it may be fairly said that in a number of respects the prisoner has not as yet fully faced up to the enormity of his actions and has found great difficulty in doing so. 85 Nevertheless, I think on balance there is a reasonable degree of remorse shown, and this is a factor which I consider I should take into account in his favour. 86 There is, of course, the significant impact all these events have had on his own family, including his mother and his children. I have little doubt that the offender will live the rest of his life, and certainly the long years he must now spend in custody, reflecting upon the terrible actions that he perpetrated on Elizabeth Feltham in April 2001 and the tragic consequences that that has had, not only for himself, but for her family and his own family as well. His violent and frenzied attack brought about the completely needless and tragic loss of the life of a valued human being. 87 I should add that I have endeavoured to take into account all of the considerations set out in s 21A of the Crimes (Sentencing Procedure) Act 1999 and have given careful consideration to each of the matters dealt with in that section. These reasons have encapsulated those factors, both aggravating and mitigating, mentioned in s 21 that I consider are most relevant to the present sentencing procedure. 88 It is also necessary that I give consideration to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. This section requires the Court firstly to set the term of the sentence and secondly to set a non-parole period for the sentence (that is the minimum period for which the offender must be kept in detention in relation to the offence). Section 44(2) provides that the non-parole period must be not less than three-quarters of the term of the sentence unless the Court decides that there are special circumstances for it being less, in which case the Court must make a record of its reasons for that decision. 89 Mr Healey has not addressed any specific submissions to the Court in relation to the prospect that the Court might find special circumstances. In my view, there are none. I have taken into account that the offender has suffered from depression and that he will be separated from his family, especially his youngest child. I have also taken into account that this will be the first time a sentence of full-time imprisonment will have been served by the offender. 90 Finally, there are reasons to suppose that the offender has, notwithstanding the facts relating to the present charges, reasonable prospects of rehabilitation. His progress so far in prison and his achievements there attest to that likelihood. 91 Notwithstanding these matters, my view is that, having regard to the length of the sentence I propose to impose, the period of parole that will result if the usual proportion of the non-parole period to the total sentence is maintained will be sufficient for the offender's rehabilitation upon release without any further extension. Secondly, I have no reason to believe that there are any other matters which would justify a lesser non-parole period than one of three-quarters of the total sentence. 92 In relation to the lesser of the two offences, it is common ground, notwithstanding the injuries to Mr Juhnke, that it pales into insignificance when compared to the more serious charge. In my view, a fixed term of six months commencing from today's date will be sufficient to address that matter. This is so because of the length of the sentence that I will impose in relation to the murder charge. The offences, though separate, are substantially contemporaneous and connected. Moreover, the total criminality involved will be adequately reflected in the imposition of concurrent sentences in the present circumstances. 93 The sentence to be imposed for the offence of murder in the present case must, notwithstanding the mitigating factors I have found, be a severe one. The taking of a human life is a most serious crime. The protection of human life and personal safety is a primary object of the system of criminal justice. The aggravating factors I have found are themselves most serious. The violent, cruel and sustained series of attacks made by the offender on the unfortunate deceased are, together with her death, to be deplored and denounced by the sentence I must impose. The remarks of the Crown in its submissions are most apt in this regard. 94 The offender's conduct in the present case is conduct that the community cannot allow and the displeasure of the community must be adequately and appropriately expressed through the sentence to be imposed by the Court. The community would expect a severe penalty and is entitled to no less. 95 In relation to the charge of murder I have determined that, without the discount for plea, a head sentence of twenty-five years would be an appropriate term of imprisonment. Applying a discount of 15 per cent I intend to impose a head sentence of twenty-one years and three months with a non-parole period of sixteen years for this offence. In my opinion a non-parole period of sixteen years represents, having regard to the seriousness of the crime, the minimum period the offender should remain in custody. The offender, however, is entitled to have the Court backdate the commencement of the sentence to the date when he first went into custody, namely 13 April 2001. 96 Mr Kenning, would you please stand up? 97 Albert Edward Kenning, in relation to the charge of murder I sentence you to a head term of imprisonment of twenty-one years and three months. The sentence is to commence on 13 April 2001. I set a non-parole period of sixteen years to expire on the date you will be eligible for parole, that is, 12 April 2017. 98 In relation to the conviction for the charge that you did assault David Karl Juhnke, thereby occasioning him actual bodily harm, I sentence you to a fixed term of imprisonment for six months to date from today's date. This sentence is to be served concurrently with the sentence in relation to the murder conviction. 99 Are there any other matters, Mr Crown?
BARNETT: There is one matter. The clothing that was returned to the DPP to hold on behalf of the Court can they be returned to the police now?
HEALEY: And your Honour, could I uplift the originals of the achievements and substitute those with photocopies for the Court record?
Last Modified: 02/27/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Kenning
Convicted on pleas of guilty. Murder: head sentence 21 years 3 months, sentence to commence 13 April 2001, non-parole period 16 years to expire 12 April 2017. Assault occasioning actual bodily harm: fixed term 6 months from date of sentence, to be served concurrently (see [95]–[98]).