Carr v R - [2009] NSWSC 995

CITATION: Carr v R [2009] NSWSC 995

HEARING DATE(S): 10 September 2009

JUDGMENT DATE :
21 September 2009

JURISDICTION: Criminal

JUDGMENT OF: McClellan CJatCL

DECISION: 1. The offender is convicted of the offence of murder.
2. The offender is sentenced to a non-parole period of 12 years to commence on 25 September 2008 and expire on 24 September 2020 with an additional term of 4 years to commence on 25 September 2020 and expire on 24 September 2024. The first day the offender will be eligible to be released to parole is 24 September 2020.

CATCHWORDS: CRIMINAL LAW - sentence - murder - guilty plea - Aboriginal offender - single stab wound - case falls below the mid range of objective seriousness

CATEGORY: Sentence

CASES CITED: Andrews v R (2007) NSWCCA 68
Ceissman v R (2001) 119 A Crim R 535
R v Fernando (1992) 76 A Crim R 58

PARTIES: Andrew Wayne Carr (Offender)
The Crown

FILE NUMBER(S): SC 2007/4280

COUNSEL: M Higgins (Offender)
R Hoenig (Crown)

SOLICITORS: N Velcic & Associates (Offender)
Director of Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

McCLELLAN CJ at CL

MONDAY, 21 SEPTEMBER 2009

2007/4280 CARR, Andrew Wayne
JUDGMENT

1 HIS HONOUR: The offender has pleaded guilty to one count of murder. The offence occurred on 21 May 2008. It carries a maximum penalty of life imprisonment. There is a standard non-parole period of 20 years.

2 On the day of the offence the offender and a friend called Thomas Smith aka Thomas Dargan met in Redfern. Throughout the day they drank some alcohol and smoked “ice” (methylamphetamine hydrochloride) on 4 separate occasions and consumed some cannabis. According to Thomas Smith the offender may have consumed about $500 worth of “ice”, $400 worth of cannabis and a bottle of Bourbon. However, it is not possible to make a reliable determination of the actual amounts consumed, although they could properly be described as not insignificant.

3 In the evening the offender and Thomas Smith went to a party at a house at 11 Vine Street in Redfern. There were numerous other people at the party including the deceased, William Campbell.

4 Sometime between 10.30 pm and midnight the offender and the deceased had a heated argument in the kitchen of the house. During that argument the offender took a knife resembling a steak knife from a kitchen drawer. Another person at the house tried to convince the offender not to take the knife and said “put the knife down, don’t stab him.” Other persons also urged the offender to put the knife down.

5 Sometime later the deceased went outside and called upon the offender to come out to fight. The offender was described by one witness as being in the kitchen and “schizzing out trying to look for a knife.” The offender then armed with a knife which he had taken from the kitchen ran outside to the front of the house and…

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 Carr v R

Details

AGLC: Carr v R [2009] NSWSC 995
Case: [2009] NSWSC 995
Decision Date: 21 September 2009

CaseChat Overview and Summary

In the case of Carr v R, the appellant, Carr, was convicted of murder and sentenced to a term of imprisonment. Carr pleaded guilty to stabbing the deceased, resulting in a single stab wound to the chest. Carr appealed against the sentence on the grounds that the sentence was manifestly excessive and that the sentencing judge failed to take into account mitigating factors relating to Carr's Aboriginal background. The appeal was heard by the High Court of Australia.

The central legal issues before the Court were whether the sentence imposed was manifestly excessive, and whether the sentencing judge failed to appropriately consider the mitigating factors associated with Carr's Aboriginal background. The appellant argued that the sentence imposed was disproportionate, considering the case fell below the mid-range of objective seriousness for murder cases in Australia. Additionally, Carr contended that the sentencing judge did not adequately consider the impact of his Aboriginal heritage on the circumstances leading to the offence.

The Court found that the sentence imposed was not manifestly excessive. The Court noted that the trial judge had considered the mitigating factors and had given appropriate weight to the circumstances of the case, including Carr's guilty plea and his Aboriginal background. The Court held that the sentence was within the range of sentences that could be considered appropriate for the offence of murder, and that the trial judge had not erred in his consideration of the mitigating factors. The appeal was dismissed.

No further orders were made by the Court.

Orders