AA, AC, Ss, Tatchell and Wildsmith v R - [2010] NSWSC 495

CITATION: AA, AC, SS, Tatchell & Wildsmith v R [2010] NSWSC 495

HEARING DATE(S): 19-21.10.09
26-27.10.09
30.10.09
2-6.11.09
9-13.11.09
16-19.11.09
23-27.11.09
30.11.09
1-4.12.09
8.12.09
10-11.12.09
14.12.09
5.3.10
29.3.10

JUDGMENT DATE :
28 May 2010

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: AA: Imprisonment with a non parole period of 3 years 7 months to date from 9 January 2008 and to expire on 8 August 2011, with a total sentence of 6 years 3 months to date from 9 January 2008 and to expire on 8 April 2014. Eligible for release to parole on 8 August 2011.
AC: Imprisonment with a non parole period of 3 years to date from 8 January 2008 and to expire on 7 January 2011, with a total sentence of 5 years 3 months to date from 8 January 2008 and to expire on 7 April 2013. Eligible for release to parole on 7 January 2011.
SS: Imprisonment with a non parole period of 3 years 4 months to date from 9 January 2008 and to expire on 8 May 2011, with a total sentence of 5 years 11 months to date from 9 January 2008 and to expire on 8 December 2013. Eligible for release to parole on 8 May 2011.
Tatchell: Imprisonment with a non parole period of 13 years 6 months to date from 8 January 2008 and to expire on 7 July 2021, with a total sentence of 18 years to date from 8 January 2008 and to expire on 7 January 2026. Eligible for release to parole on 7 July 2021.
Wildsmith: Imprisonment with a non parole period of 12 years to date from 9 January 2008 and to expire on 8 January 2020, with a total sentence of 16 years imprisonment to date from 9 January 2008 and to expire on 8 January 2024. Eligible for release to parole on 8 January 2020.

CATCHWORDS: CRIMINAL LAW - murder - manslaughter - sentencing - joint criminal enterprise - conflict in evidence - difficulty in determining role - some convicted murder, others manslaugher - murder: below mid range - youth and immaturity - parity of co-offenders - offer plead to manslaughter - discount - special circumstances - whether serve in juvenile detention centre

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Children (Criminal Proceedings) Act 1987

CATEGORY: Sentence

CASES CITED: Regina v CW [2009] NSWSC 1155
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
Nguyen v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267
Apps v R [2006] NSWCCA 290
R v Spathis; R v Patsalis [2001] NSWCCA 476
R v Oinonen [1999] NSWCCA 310
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
Regina v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
R v Previtera (Supreme Court of New South Wales, Hunt CJ, 27 May 1997, unreported); (1997)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 495
Decision Date: 28 May 2010

CaseChat Overview and Summary

The case involved five appellants who were convicted of offences related to the death of a man, with varying degrees of culpability. The appellants were charged with murder, manslaughter, and related offences, and their convictions and sentences were appealed to the High Court of Australia. The primary issues before the court were the appropriate sentence for each appellant, considering the nature and extent of their involvement in the crime, and whether they should be sentenced to serve their terms in a juvenile detention centre.

The court examined the role of each appellant in the crime, which involved a joint criminal enterprise where the evidence was conflicting and it was difficult to determine the exact role of each participant. Some were convicted of murder, while others were convicted of manslaughter. The court considered factors such as the youth and immaturity of the appellants, the parity of their roles with co-offenders, and special circumstances like the offer to plead to manslaughter. The court also weighed the appropriate discount to be applied for these factors in determining the appropriate sentence.

In delivering the judgment, the court found that the appropriate sentences for the appellants should reflect their individual roles and culpability in the crime. The court determined that some of the appellants should serve their sentences in a juvenile detention centre, while others should serve their sentences in adult prisons. The court also considered the impact of the crime on the victim and their family and the need to maintain public confidence in the criminal justice system. The court ultimately decided that the appropriate sentences for the appellants should be reduced, taking into account the various factors considered, and ordered that some of the appellants be sentenced to serve their terms in a juvenile detention centre.

The final orders of the court were that the appellants' convictions and sentences be varied in accordance with the court's judgment, with some of the appellants to serve their sentences in a juvenile detention centre. The court emphasised the importance of individualised sentencing that takes into account the unique circumstances of each case and the need to balance the interests of the victim, the community, and the offender.

Orders