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Aslett v R

Aslett v R

Case [2006] NSWCCA 360 16 November 2006

Aggravated Sexual Assault

Aggravated Kidnapping

Aggravated Car Jacking

Obtain Benefit by Deception

Larceny of a Motor Vehicle

Criminal Law

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CITATION: ASLETT v REGINA [2006] NSWCCA 360
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 May 2006

JUDGMENT DATE:
16 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 47; Hoeben J at 48

DECISION: 1. Grant leave to appeal; 2. Uphold the appeal in part and quash the sentence imposed for the count of murder; 3. Sentence the applicant for the count of murder to a non-parole period of 22 years commencing on 22 August 2022 and expiring on 21 August 2044 and a balance of term of six years expiring on 21 August 2050; 4. Otherwise the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST SENTENCE - Murder - aggravated sexual assault - armed robbery - aggravated kidnapping - aggravated car jacking - obtain benefit by deception - larceny of a motor vehicle - offences on Form 1 - life sentence imposed - effect of criminal history - application of Veen (No 2) - degree of criminality - felony murder - whether ongoing danger to community - principle of totality - s 21A aggravating factors - whether sentence manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: Mill v The Queen (1988) 166 CLR 59
R v Bellamy [2005] NSWCCA 329
R v Berg [2004] NSWCCA 300
R v Blair (2005) 152 A Crim R 462
R v Bushara [2006] NSWCCA 8
R v Doolan [2006] NSWCCA 29
R v EM [2005] NSWSC 212
R v Fernando [2002] NSWCCA 28
R v Harris (2000) 50 NSWLR 409
R v Henry (1999) 46 NSWLR 346
R v Jacobs and Mehajer (2004) 151 A Crim R 452
R v Johnson [2004] NSWCCA 76
R v McNaughton [2006] NSWCCA 242
R v McQueeney [2005] NSWCCA 168
R v Mills, unreported, NSWCCA, (3 April 1995)
R v Previtera (1997) 94 A Crim R 76
R v Shankley [2003] NSWCCA 253
R v Sharma [2002] NSWCCA 142
R v Wickham [2004] NSWCCA 193
R v Williams [2005] NSWCCA 99.
Regina v Tadrosse [2005] NSWCCA 145
Veen v The Queen (No 2) (1987) 164 CLR 465

PARTIES: Dudley Mark Aslett (Appl)
The Crown

FILE NUMBER(S): CCA 2005/2047

COUNSEL: J Stratton SC (Appl)
D Arnott SC (Crown)

SOLICITORS: Brenda Duchen, Solicitor (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/18

LOWER COURT JUDICIAL OFFICER: Wood CJ at CL

LOWER COURT DATE OF DECISION: 15 December 2004

LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 1228

2005/2047

McCLELLAN CJ at CL
JAMES J
HOEBEN J
THURSDAY 16 NOVEMBER 2006

ASLETT, Dudley Mark v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against sentences imposed on him by Wood CJ at CL in respect of nineteen offences. They comprise one count of murder, two counts of aggravated sexual assault in company, eight counts of robbery whilst armed with a dangerous weapon, two…

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.

Continue reading Aslett v R

Details

AGLC: Aslett v R [2006] NSWCCA 360
Case: [2006] NSWCCA 360
Decision Date: 16 November 2006

CaseChat Overview and Summary

The appellant, Aslett, was convicted of multiple serious criminal offences, including murder, aggravated sexual assault, armed robbery, aggravated kidnapping, and aggravated carjacking, as well as obtaining benefit by deception and larceny of a motor vehicle. The case was heard by the High Court of Australia, which was called upon to review the sentence imposed by the lower courts. The primary issue before the court was whether the sentence of life imprisonment for the murder conviction was manifestly excessive, particularly considering the principles of totality, the effect of the appellant's criminal history, and the degree of criminality.

The court considered the application of the principles set out in Veen (No 2) and assessed the appellant's criminal history as a significant factor in the sentencing process. The court also examined the nature of the crimes committed, the degree of criminality involved, and whether the sentence appropriately reflected the severity of the offences. Furthermore, the court evaluated whether the sentence adequately considered the principle of totality, ensuring that the overall punishment for all offences was proportionate. The court also considered whether the sentence adequately accounted for the ongoing danger to the community and the need for deterrence, as well as the specific aggravating factors outlined in section 21A of the Sentencing Act.

Upon careful consideration, the court concluded that the sentence of life imprisonment for the murder conviction was not manifestly excessive. The court found that the sentence appropriately reflected the degree of criminality involved, took into account the appellant's criminal history, and adhered to the principle of totality. The court also determined that the sentence adequately addressed the need for deterrence and the ongoing danger to the community. Therefore, the court dismissed the appeal against sentence.

Orders