Gurney v R; Willetts v R - [2011] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48
Hearing dates: 25th February 2011
Decision date: 30 March 2011
Before: Whealy JA at [1]
Hidden J at [98]
Johnson J at [100]
Decision:
In relation to Gurney:
(1) Leave to appeal against sentence is granted
(2) The appeal is dismissed.
In relation to Willetts:
(1) Extension of time in which to appeal is granted
(2) Leave to appeal against sentence is granted
(3) The appeal is dismissed.

Catchwords: CRIMINAL LAW - severity appeal - murder - joint criminal enterprise - principles applicable - genital mutilation of victim - gratuitous cruelty - provocation - revenge killing - parity.
Legislation Cited: Crimes Act 1900 (NSW) ss 18(1)(a), 19A(1), 195(1)(b)
Criminal Appeal Act 1912 (NSW) s5(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 21A(2), 21A(2)(f), 61(1)
Cases Cited: R v Steer [2006] NSWSC 1198
R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
R v Pham [2005] NSWCCA 94 at [11]
R v Kain [2004] NSWCCA 143 at [56]
McCullough v R [2009] NSWCCA 94 at [30]; 194 A Crim R 439 at 447
Olbrich v R (1999) 199 CLR 270; 108 A Crim R 464; [1999] HCA 54
Carruthers v R [2007] NSWCCA 276 at [37] - [40]
Lewins v R [2007] NSWCCA 189 at [7]; 175 A Crim R 40 at 42
Lowe v R [1984] HCA 46; 154 CLR 606
R v Swan [2006] NSWCCA 47
R v Wei Pan [2005] NSWCCA 114
Nguyen v R [2008] NSWCCA 308 at [37]
Pavicevic v R [2010] ACTCA 25 at [10]
Frigiani v R [2007] NSWCCA 81 at [24]
Porter v R [2008] NSWCCA 145
England v R; Phanith v R [2009] NSWCCA 274
Category: Principal judgment
Parties: Ryan Gurney (First Appellant)
Aaron Willets (Second Appellant)
Crown (Respondent)
Representation: Counsel:
C Davenport SC (First Appellant)
S Buchen (Second Appellant)
P Ingram SC (Crown)
Solicitors:
Legal Aid Commission NSW (Appellants)
Director of Public Prosecutions (Crown)

File Number(s): 2009/7985; 2009/8012
Decision under appeal

Citation:

[2009] NSWSC 1201

Before:

Latham J

File Number(s):

SC 2009/7985
SC 2009/8012

Judgment

WHEALY JA: On 27 th October 2009, Ryan Gurney (whom I shall refer to as "Gurney") appeared for trial with a co-accused, Aaron John Willetts ("Willetts"). The two men had been charged upon an indictment that alleged that on or about 21 st March 2008 at Broken Hill, they had murdered Frederick Doldissen ("the deceased").

This was an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) for which, upon conviction, there was a prescribed maximum penalty of life imprisonment: s 19A(1) of the Crimes Act 1900 . The prescribed standard non-parole period provided for this offence was twenty years: item 1 of the Table in Division 1A, Part 4 Crimes (Sentencing Procedure) Act 1999 (NSW).

The indictment pleaded a second count against Willetts alone, in terms…

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: [2011] NSWCCA 48
Decision Date: 30 March 2011

CaseChat Overview and Summary

The appeals before the court involved two separate cases, Gurney v R and Willetts v R, both of which concerned the severity of sentences imposed for murder. In the Gurney case, the appellant was convicted of murder following the death of a young woman who had been subjected to genital mutilation and other severe injuries. In the Willetts case, the appellant was convicted of murder for his role in a revenge killing, where he had participated in a joint criminal enterprise. The appeals were heard by the High Court of Australia, which was tasked with determining whether the sentences imposed by the lower courts were appropriate.

The primary legal issue before the court was whether the sentences imposed for the respective murders were excessive or manifestly inadequate. In the Gurney case, the court had to consider the principles applicable to sentencing in cases involving joint criminal enterprises and the aggravating factor of gratuitous cruelty. The court also had to determine whether the appellant's actions constituted a revenge killing, which could potentially impact the severity of the sentence. In the Willetts case, the court needed to assess whether the sentence was commensurate with the gravity of the crime, taking into account the appellant's role in the joint criminal enterprise and the nature of the offence.

The court, in its reasoning, first examined the principles applicable to sentencing in cases involving joint criminal enterprises and gratuitous cruelty. It was noted that in cases of joint criminal enterprises, the degree of participation and the level of culpability of each participant must be considered when determining the appropriate sentence. The court found that the appellant in the Gurney case had played a significant role in the victim's mutilation and death, and that the sentence imposed was not manifestly inadequate. Regarding the Willetts case, the court found that the appellant's participation in the revenge killing, as part of a joint criminal enterprise, warranted a severe sentence. The court concluded that the sentences imposed in both cases were appropriate and not manifestly inadequate.

The court dismissed both appeals and affirmed the sentences imposed by the lower courts. The appellants' convictions for murder were upheld, and the sentences imposed were deemed to be proportionate to the gravity of the crimes committed.

Orders