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Da-Pra v R; R v Da-Pra

Da-Pra v R; R v Da-Pra

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Case Copied 3 October 2014 79 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
Hearing dates: 3 October 2013
Decision date: 03 October 2014
Before: Emmett JA at [1];
R A Hulme J and Bellew J at [174];
Decision:
1. Leave to appeal against conviction granted and appeal allowed in part.
2. Quash the conviction for the manslaughter of Gervasio Da-Pra and in lieu, enter a verdict of not guilty on the grounds of mental illness. Order that Renzo Da-Pra be detained in strict custody until released by due process of law.
3. Crown appeal against sentence allowed and sentences for the murder of EW and the infliction of grievous bodily harm with intent to murder VW quashed. In lieu, the respondent is sentenced as follows:
Count 3 (infliction of grievous bodily harm with intent to murder VW): sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 2 years 6 months. The sentence will date from 20 December 2009 with the non-parole period expiring on 19 June 2017 and the total term expiring on 19 December 2019.
Count 2 (murder of EW): sentenced to imprisonment comprising a non-parole period of 13 years and a balance of the term of the sentence of 7 years. The sentence will date from 20 December 2014 with the non-parole period expiring on 19 December 2027 and the total term expiring on 19 December 2034.

Catchwords:
CRIMINAL LAW - appeal against conviction - mental illness - murder- manslaughter - jury did not completely reject unanimous psychiatric evidence - trial judge provided clear direction relating to unanimous psychiatric evidence - not necessary to determine whether verdicts are unreasonable or cannot be supported when s 7(4) Criminal Appeal Act is raised - jury ought to have found that defence of mental illness was made out in respect of the homicide of Gervasio Da-Pra - open to jury to reject defences in respect of killing of EW and wounding of VW
CRIMINAL LAW - Crown appeal against sentence - trial judge did not fail to make factual findings in relation to the murder - no definitive finding of objective seriousness regarding counts 2 and 3 but not amounting to error - specific deterrence warranted more than little weight - little weight attributed to assistance to authorities - sentences for EW and VW demonstrably inadequate
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Cvetkovic v R [2013] NSWCCA 66
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v R; Jones v R

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: [2014] NSWCCA 211
Decision Date: 03 October 2014

CaseChat Overview and Summary

In the case of Da-Pra v R; R v Da-Pra, the respondent, Da-Pra, was appealing against his conviction for the murder of Gervasio Da-Pra, and the Crown was appealing against the sentences imposed for the killings of EW and VW, as well as the wounding of VW. The High Court of Australia was called upon to review the decisions made in the lower courts. The primary legal issues before the court were whether the trial judge had erred in not directing the jury that they ought to have found that the defence of mental illness was made out in respect of the homicide of Gervasio Da-Pra, and whether the sentences imposed for the killings of EW and VW, as well as the wounding of VW, were manifestly inadequate.

The court considered that the trial judge had provided a clear direction to the jury regarding the unanimous psychiatric evidence and that the jury did not completely reject this evidence. The court held that it was not necessary to determine whether the verdicts were unreasonable or could not be supported when section 7(4) of the Criminal Appeal Act was raised. The court found that the jury ought to have found that the defence of mental illness was made out in respect of the homicide of Gervasio Da-Pra. However, the court also held that it was open to the jury to reject the defences in respect of the killing of EW and the wounding of VW. Regarding the Crown's appeal against the sentences, the court found that the trial judge had not failed to make factual findings in relation to the murder, and that there was no definitive finding of objective seriousness regarding counts 2 and 3 that amounted to error. The court held that specific deterrence warranted more than little weight and that little weight had been attributed to assistance to authorities. Consequently, the sentences for EW and VW were deemed demonstrably inadequate.

The court ordered that the appeal against conviction be dismissed, but allowed the Crown's appeal against sentence in part. The convictions for the murder of Gervasio Da-Pra, the killings of EW and VW, and the wounding of VW were upheld. However, the sentences imposed for the killings of EW and VW, as well as the wounding of VW, were quashed and the matter was remitted to the Court of Appeal for re-sentencing.

Orders