Says no amount of jail time will bring the man they loved back
Moments after the man who killed Joey Whalen was sentenced Friday, members of Whalen’s family walked calmly out of the courtroom.
© — Photo by Joe Gibbons/The Telegram
Kenny Green sits in Newfoundland and Labrador Supreme Court in St. John’s Friday.
They said little as they hugged each other on the sidewalk outside Newfoundland Supreme Court in St. John’s and then slowly dispersed.
It was in drastic contrast to their reaction the last few times they had left court.
Last week — after Kenny Green’s sudden move to plead guilty to manslaughter, and the lawyers’ plea bargain on sentencing — about a dozen of them had stormed out, outraged at the turn of events and the leniency of the suggested sentence.
This time, they were even-tempered, reconciled to the fact that they would never get what they wanted.
Justice William Woodridge went along with the lawyers’ agreed recommendation and sentenced Green to six years in jail, minus credit for the time he’s already spent in custody. In total, Green has four years and 4 1/2 months left on his term.
“I guess it’s as you would expect,” Whalen’s daughter, Brittany Hammond, told reporters.
“It’s not as good as we wanted, but we had a meeting with the Crown and they explained why it was the way it was.
“With the evidence they had, that was the best that they could do, which is understandable. I guess we just have to deal with it the best you can.
“No sentence is going to bring my father back, anyway.”
Green had originally pleaded not guilty to second-degree murder, but on May 6, the day his four-week jury trial was supposed to start, he agreed to plead guilty to the lesser charge of manslaughter.
The 35-year-old from Mount Pearl admitted he was responsible for the beating death of 47-year-old Whalen.
The incident happened March 13, 2013, at 8 Tessier Pl. in the capital city, a house Green used for his drug-trafficking business. Whalen, who had been selling drugs for Green, showed up at the house shortly after Green arrived, and an altercation broke out.
Green admitted he punched Whalen several times. Evidence at the scene revealed some of the punches were thrown when Whalen was on the floor and unable to fight back.
Whalen died in hospital four days later due to swelling on the brain caused by blunt force trauma to the head.
But because there were difficulties in the Crown’s case and uncertainties in getting a conviction, Crown prosecutor Sheldon Steeves agreed to accept the guilty plea to manslaughter. He and defence lawyer Randy Piercey presented the six-year suggestion for sentencing at a hearing late last week.
At the request of the Whalen family, representatives of the Crown’s office also met with them this week to explain their logic in reaching the decision.
“In my mind it does (make sense), but in my heart it doesn’t, because it will never be enough for me,” Hammond said.
“Logically I know they did the best that they could.
“(Initially), it was just kind of a real shock to us. We had no idea what to expect and now we’ve just got to move on and deal with it the best we can.”
In sentencing, Goodridge explained, “Resolution discussions between informed and competent counsel and guilty pleas based on joint sentencing submissions are a proper and necessary part of the administration of justice in this province.”
He said a general rule for judges is to accept joint recommendations from lawyers.
Goodridge said he understood the Crown faced challenges in proving the murder charge.
First, there were no witnesses to the crime and the three people who were in the house were not reliable, the judge said.
Derek Tulk, who lived at the house, had gone upstairs to get Green’s money and stayed there when he heard the men fighting. Two women were upstairs in a drug-induced sleep.
Green said he was provoked by Whalen, who he felt was going to rip him off. Green said he acted in self-defence, fearing Whalen was going to “take him out,” as he saw a knife in Whalen’s waistband. A bloodied knife in two pieces was found at the scene.
There was also some question about the 22-minute delay before the 911 call was placed after Green left the house, “creating uncertainty about possible intervening events contributing to the death.”
Also, footprints in blood found at the house did not match anyone known to have been at the house at the time, suggesting the presence of an unknown third party.
“These circumstances expose the risk and uncertainties for the Crown’s case,” said the judge, who pointed out the Crown must prove guilt beyond a reasonable doubt.
He said had the case gone to trial, the more probable outcome would have been a finding of guilty on manslaughter.
“The compromise cannot console the family and friends who have lost someone they loved dearly, but no sentence can ever console,” Goodridge said.
“The compromise cannot satisfy members of the public who assume a conviction for second-degree murder was certain, but no conviction was certain.”
The judge said a six-year sentence is low for the violent assault causing Whalen’s death, “but not low in the context of a plea bargain when risks and uncertainties of conviction exist.”
He also noted that Green has no previous violent crimes on his dated record.
Goodridge gave Green 1 1/2 times credit for most of the time he’s served in custody because Green was in the Special Handling Unit at Her Majesty’s Penitentiary, which is considered a harsher form of custody, as there is limited programming and recreation time.
Now that the legalities are over for the Whalen family, Whalen’s daughter said she will focus on trying to recover.
“(I’m) dealing with how he died and the fact that he’s gone the best we can,” she said. “I mean, how do you deal with losing your father? It just takes some time. That’s all I can hope.”
But Hammond said she will always have fond memories of her father.
“I won’t remember him as they portray him. I’ll remember him as a great dad,” she said.
“He loved to go fishing. He was a kind-hearted guy. I never seen him (angry). I think he got mad rarely at home. He was a different guy when he was outside of our house. The way he was with us is really the way he was in his heart.
“I knew that’s how he was.”