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ASP v The Queen

ASP v The Queen

Case [2007] NSWSC 339 13 April 2007

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CITATION: ASP v R [2007] NSWSC 339

HEARING DATE(S): 23 February 2007, 27 February 2007, 1 March 2007

JUDGMENT DATE :
13 April 2007

JUDGMENT OF: Johnson J at 1

DECISION: 1. Application to redetermine life sentence refused; 2. Direct that Applicant not reapply to Court for redetermination for a period of seven years.

CATCHWORDS: SENTENCING - application to redetermine life sentence imposed in 1988 - abduction, sexual assault and murder of victim - offences committed whilst on parole for sexual assault offences - applicant committed other offences of abduction and sexual assault in month prior to murder - lengthy determinate sentences imposed for other offences - whether offence constituted a "most serious case of murder" - application of totality principle where life sentence imposed together with lengthy determinate sentences - later incident of sexual assault in prison in 1993 - relevance of later incident to redetermination application - preservation of safety of community - offender with dangerous propensity to commit offences of abduction and sexual assault in 1980s - assessment of prospects of rehabilitation and risk of reoffending - public interest - application refused - applicant precluded from making further application for seven years

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Children (Criminal Proceedings) Act 1987
Evidence Act 1995
Crimes Act 1900
Sentencing Act 1989

CASES CITED: R v Archer (Court of Criminal Appeal, 21 August 1987, unreported)
Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225
Douar v The Queen (2005) 159 A Crim R 154
Weininger v The Queen [2003] 212 CLR 629
Briginshaw v Briginshaw (1938) 60 CLR 336
The Queen v Olbrich (1999) 199 CLR 270
Collins v R [2006] NSWCCA 162
R v Previtera (1997) 94 A Crim R 76
R v Slater (2001) 121 A Crim R 369
R v FC and JD (2006) 160 A Crim R 392
Ibbs v The Queen (1987) 163 CLR 447
R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported, BC9402546)
R v Fernando (1997) 95 A Crim R 533
R v Twala (Court of Criminal Appeal, 4 November 1994, unreported)
R v Purdey (1993) 31 NSWLR 668
R v Fernando [1999] NSWCCA 66
Veen v The Queen (No. 2) (1988) 164 CLR 465
R v MAK and MSK [2006] NSWCCA 381
R v Salameh [1999] NSWCCA 300
R v Maiden [2000] NSWCCA 519
R v Malcolm (1991) 58 A Crim R 148
R v Page [2002] NSWSC 1067
R v Towner [2002] NSWSC 951
R v Clarke [1999] NSWSC 1225
R v Clarke [2005] NSWSC 413
R v Harris (2000) 50 NSWLR 409
R v Kalajzich (1997) 94 A Crim R 41
R v Qutami (2001) 127 A Crim R 369
R v Palu (2002) 134 A Crim R 174
Baker v The Queen [2004] 223 CLR 513
R v Boyd (1995) 81 A Crim R 260
R v Jamieson (1992) 60 A Crim R 68

PARTIES: ASP (Applicant)
Regina (Respondent)

FILE NUMBER(S): SC L2001/03

COUNSEL: Mr P Kintominas (Applicant)

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 ASP v The Queen

Details

AGLC: ASP v The Queen [2007] NSWSC 339
Case: [2007] NSWSC 339
Decision Date: 13 April 2007

CaseChat Overview and Summary

In the case of ASP v The Queen, the applicant sought a redetermination of a life sentence imposed in 1988 for the abduction, sexual assault, and murder of a victim. The applicant, already on parole for prior sexual assault offences, committed these offences shortly before the murder. The applicant had also been sentenced to lengthy determinate terms for other abduction and sexual assault offences committed in the month prior to the murder. The application to redetermine the life sentence raised questions about whether the offence constituted a "most serious case of murder" and the application of the totality principle given the concurrent lengthy determinate sentences. Additionally, the relevance of a later incident of sexual assault in prison in 1993 to the redetermination application was considered, along with the need to preserve the safety of the community. The applicant's history of dangerous propensity to commit offences of abduction and sexual assault in the 1980s, and the assessment of prospects of rehabilitation and risk of reoffending, were also factors in the decision.

The court was tasked with deciding whether the applicant's life sentence should be redetermined, considering the seriousness of the crimes, the totality of the sentences already imposed, and the preservation of community safety. The court examined the principles of sentencing, particularly the need to ensure that the punishment reflects the gravity of the crime and the need to protect the community. The court also considered the applicant's history of violent offences and the likelihood of future offending. The application of the totality principle was crucial in balancing the concurrent lengthy determinate sentences with the life sentence. The court needed to weigh these factors against the applicant's prospects of rehabilitation and the public interest in ensuring the safety of the community.

The court concluded that the application to redetermine the life sentence should be refused. The applicant's history of violent crimes, including abduction and sexual assault, demonstrated a dangerous propensity that warranted a severe sentence. The court found that the original sentence appropriately reflected the gravity of the offences and the need to protect the community. The totality principle was applied in a manner that considered all sentences imposed, and the court determined that there was insufficient grounds to alter the life sentence. The court also noted that the later incident of sexual assault in prison further supported the original sentence. The decision was made in the interest of preserving public safety, given the applicant's history of violent offending. The court further precluded the applicant from making any further application for redetermination for a period of seven years.

Orders