Adamson JA at [1]; Hamill J at [61]; Cavanagh J at [186]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal on ground 1.
(3) Quash the sentence imposed on 12 March 2021 and in lieu thereof the applicant is sentenced to a non-parole period of 12 years commencing on 20 July 2019 and expiring on 19 July 2031, with a balance of term of 4 years and 6 months expiring on 19 January 2036.
(4) The applicant will be eligible for release to parole at the expiration of the non-parole period.
(5) The applicant is advised that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to her case and the Court directs the applicant’s legal representative to explain the implications of that statute to the applicant.
Catchwords:
CRIMINAL LAW – sentencing – manslaughter – horrendous killing of mother – decapitation – substantially impaired offender – complex neurological and mental impairments – relationship between moral culpability and objective seriousness – spontaneous offence – loss of self-control – protection of the community – purposes of punishment – whether error in assessment of objective gravity
CRIMINAL LAW – sentencing – facilitation of the course of justice – distinction from statutory discount for utilitarian value of guilty plea – where statutory system prescriptive and unfair – facilitation discount not to fill gaps – whether error in approach taken by sentencing judge
Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(n), 21A(3)(b), 23A, Pt 3 Div 1A, 25D(1), 25D(5), 25D(5)(a), 25E, 25E(2), 25E(3)(b), 22A, 22A(1), 22A(2), 25F, s 25F(2), 54A(2)
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995,…
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
AGLC
Camilleri v R [2023] NSWCCA 106
Case
[2023] NSWCCA 106
Decision Date
CaseChat Overview and Summary
Camilleri was convicted of manslaughter after killing his mother in a brutal and violent attack. The deceased was decapitated and the killing was described as horrendous. Camilleri had substantial neurological and mental impairments, which impaired his capacity for moral reasoning and impulse control. The court was required to decide whether the sentencing judge erred in assessing the objective seriousness of the crime and whether the facilitation of the course of justice discount was properly applied.
The court found that the sentencing judge had erred in assessing the objective seriousness of the crime. The court held that the objective seriousness of the crime should be assessed by reference to the gravity of the crime, not the moral culpability of the offender. The court held that the sentencing judge had placed too much weight on Camilleri's moral culpability and not enough on the gravity of the crime. The court also found that the facilitation of the course of justice discount was not properly applied. The court held that the facilitation discount should not be used to fill gaps in the statutory sentencing system, and that it was not appropriate in this case because the statutory system was prescriptive and unfair.
The court ordered a re-sentencing of Camilleri, directing the sentencing judge to properly assess the objective seriousness of the crime and not to apply the facilitation of the course of justice discount. The court held that the sentencing judge should consider the purposes of punishment, including protection of the community, deterrence, and rehabilitation. The court held that the sentencing judge should also consider the relationship between moral culpability and objective seriousness, and whether the offence was spontaneous and involved a loss of self-control.