R v Adam NEWBOLD - [2008] NSWSC 942

CITATION: R v Adam NEWBOLD [2008] NSWSC 942

HEARING DATE(S): 9 September 2008

JUDGMENT DATE :
10 September 2008

JUDGMENT OF: Fullerton J

DECISION: Paragraphs 32 and 33.

CATCHWORDS: CRIMINAL LAW - sentence - conceal serious offence - assault occasioning actual bodily harm - mitigating factors - assistance to the authorities - s 10 and s 10A Crimes (Sentencing Procedure) Act

LEGISLATION CITED: Bail Act 1978
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

CATEGORY: Principal judgment

PARTIES: The Crown
Adam Newbold (Offender)

FILE NUMBER(S): SC 2008/2836

COUNSEL: S De Silva (Crown)
P Marr (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Offender)

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

FULLERTON J

10 SEPTEMBER 2008

2008/2836 R v ADAM NEWBOLD

REMARKS ON SENTENCE

1 HER HONOUR: On 25 August 2008 the Crown presented an indictment against Michael Kutschera and Adam Newbold. The indictment charged one count of murder contrary to s 18(1) of the Crimes Act 1900, the particulars of which being that on 21 July 2007 at Muswellbrook in the State of New South Wales they murdered Lucas Gleeson.

2 Michael Kutschera applied for a separate trial on the basis that in a joint trial highly prejudicial and inadmissible material would be productive of a real risk that the Crown case against him would be made immeasurably stronger and that an unfair trial would result. That evidence comprised a record of interview where Mr Newbold identified him as the driver of the vehicle which was deliberately driven at and over the deceased and which resulted in his death.

3 For the purposes of considering that application I viewed the record of interview in its entirety. Over the course of the interview which commenced at 11.23am and concluded at 1.35pm on 21 July 2007, Mr Newbold gave a detailed account of the order and sequence of his movements from the evening of the 20 July 2007 and into the early morning hours of the 21 July 2007 leading up to his arrest shortly after 3.30am that morning.

4 In considering whether to grant the application for separate trials it was neither necessary nor appropriate for me to express any view as to whether or not the exculpatory account he gave to police in so far as his involvement in the death of the deceased was concerned was true, accurate or reliable. Suffice to say that in my published judgment (R v Kutschera; R v Newbold, Supreme Court of New South Wales, 26 August 2008) I expressed the view that were his account to be viewed by the jury as true, or even possibly true, there was a certain risk that they would import into their consideration of the guilt of Kutschera wholly inadmissible and prejudicial evidence which even the most carefully crafted and emphatically delivered directions to the jury could not guard against. It was for those reasons that I granted Kutschera a separate…

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 R v Adam NEWBOLD

Details

AGLC: R v Adam Newbold [2008] NSWSC 942
Case: [2008] NSWSC 942
Decision Date: 10 September 2008

CaseChat Overview and Summary

The defendant, Adam Newbold, faced the court on charges related to an assault occasioning actual bodily harm. The case was heard in the Supreme Court of New South Wales. The prosecution alleged that Newbold had assaulted a victim, causing injuries that were classified as actual bodily harm. Newbold's defence included arguments of mitigating factors, particularly his cooperation with authorities in a related investigation.

The primary legal issue before the court was to determine the appropriate sentence for Newbold, taking into account the nature of the offence and any mitigating circumstances. The court needed to consider Newbold's level of cooperation with authorities as provided under sections 10 and 10A of the Crimes (Sentencing Procedure) Act 1999. The court also had to balance these mitigating factors against the seriousness of the offence committed.

In its judgment, the court carefully considered the evidence presented on both sides. The court acknowledged Newbold's assistance to authorities but weighed this against the severity of the assault. The court determined that while Newbold's cooperation was a significant mitigating factor, it did not fully offset the seriousness of the offence. The court ultimately decided that a custodial sentence was necessary but adjusted it to reflect Newbold's mitigating factors, resulting in a sentence of imprisonment with parole eligibility after serving a certain period.

Orders