R v AH - [2011] NSWSC 1535

Supreme Court

New South Wales

Medium Neutral Citation: R v AH [2011] NSWSC 1535
Hearing dates: 19 September 2011
Decision date: 13 December 2011
Before: Johnson J
Decision:
For the offence of manslaughter, and taking into account the Form 1 offence, the Offender is convicted and sentenced to imprisonment comprising a non-parole period of two years commencing on 2 December 2011 and expiring on 1 December 2013 with a balance of term of two years commencing on 2 December 2013 and expiring on 1 December 2015.
The earliest date upon which the Offender will be eligible for release on parole is 2 December 2013.
In accordance with s.19 Children (Criminal Proceedings) Act 1987 , an order is made directing that the whole of the term of imprisonment of the Offender is to be served as a juvenile offender.

Catchwords: CRIMINAL LAW - sentence - manslaughter - plea of guilty - participation in affray involving two groups of young men - deceased stabbed by another person in Offender's group - relevance of youth - other factors relevant to sentence
Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Barghachoun [2011] NSWSC 1534
AI v R [2011] NSWCCA 95
BP v R [2010] NSWCCA 159; 201 A Crim R 379
R v La Rosa [2011] NSWSC 1394
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
AH (Offender)
Representation: Mr AJ McCarthy (Crown)
Mr IH McClintock SC; Ms K Stares (Offender)
Solicitor for Public Prosecutions (Crown)
Veronica Love (Offender)

File Number(s): 2009/59632
Publication restriction: ---

REMARKS ON SENTENCE

JOHNSON J : The Offender, AH, appears for sentence for the crime of manslaughter. The maximum penalty for this offence is imprisonment for 25 years.

On 22 July 2011, the Offender was arraigned before Latham J upon an indictment alleging that, on 25 April 2009, at Busby in the State of New South Wales, he did murder David Wayne Boyce. The Offender pleaded not guilty to murder, but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

In passing sentence for the offence of manslaughter, the Offender asks the Court to take into account on sentence an offence of hindering the execution of a search warrant contrary to s.52 Law Enforcement (Powers and Responsibilities) Act 2002 , for which the maximum penalty is imprisonment for two years.

At the outset, I observe that the Offender is not to be sentenced for directly causing the death of Mr Boyce. It is not alleged that the Offender wielded the knife which caused the fatal injury to Mr Boyce. Rather, the Offender's crime arises from his participation in events in the early hours of 25 April 2009 which saw two groups of young men coming into conflict, involving the use of violence, and with a person on the Offender's side of the conflict stabbing Mr Boyce to death. I will return to the nature of the Offender's crime,…

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 AH

Details

AGLC: R v AH [2011] NSWSC 1535
Case: [2011] NSWSC 1535
Decision Date: 13 December 2011

CaseChat Overview and Summary

In this matter, the respondent, AH, pleaded guilty to a charge of manslaughter. The incident involved an affray between two groups of young men, during which the deceased was fatally stabbed by another person in the respondent's group. The court was required to consider the appropriate sentence for the respondent, taking into account various factors including the respondent's age at the time of the offence and his level of participation in the affray.

The central legal issue before the court was to determine the appropriate penalty for the respondent's involvement in the manslaughter, considering the specific circumstances of the case. The court had to weigh the respondent's age and level of participation against the severity of the crime and the impact on the victim and their family. The court also had to consider other relevant factors that could influence the sentence, such as the respondent's background and any mitigating or aggravating circumstances.

The court found that, while the respondent's youth was a mitigating factor, it was not sufficient to override the seriousness of the offence. The court also considered the respondent's level of involvement in the affray and the fact that the fatal stabbing was carried out by another individual within the respondent's group. Ultimately, the court determined that a custodial sentence was necessary to adequately reflect the gravity of the offence and to provide deterrence and protection for the community. The respondent was sentenced to a period of imprisonment, with the exact duration to be determined by the court following further hearings.

The court made an order for the respondent to be detained in custody pending the determination of his sentence. The court also directed that a pre-sentence report be prepared to assist in determining the appropriate length of the custodial sentence. The respondent was given an opportunity to make representations regarding his sentence, and the matter was adjourned to a later date for the imposition of sentence.

Orders