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R v AKB (No. 8)

R v AKB (No. 8)

Case [2018] NSWSC 1628 2 November 2018

Frustration of Contract

Negligence

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v AKB (No. 8) [2018] NSWSC 1628
Hearing dates: 7 September 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Before: Davies J
Decision:
The offender is sentenced to imprisonment for a period of 36 years commencing 18 October 2016 and expiring on 17 October 2052 with a non-parole period of 27 years expiring on 17 October 2043.

Catchwords: SENTENCING – murder – domestic violence-related – where offender introduced accelerant to bedroom of wife and prevented her from escaping subsequent fire – offence well above the mid-range of objective seriousness – aggravating factors – gratuitous cruelty – presence of children – home of deceased – prospects of rehabilitation unfavourable given continuing denial of responsibility – whether life sentence should be imposed – Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1) – community interest in protection and specific deterrence satisfied by lesser sentence considering age of offender at earliest date of release made re-offending unlikely – minimal planning – consistency in sentencing for spousal murders – life sentence not imposed
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 61
Migration Act 1958 (Cth)
Cases Cited: Alseedi v R [2009] NSWCCA 185
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Gonzales v Regina [2007] NSWCCA 321; (2007) 178 A Crim R 232
Hiron v R [2007] NSWCCA 336
Imbornone v R [2017] NSWCCA 144
Lowe v The Queen (1984) 154 CLR 606
R v Archer [2015] NSWSC 1487
R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
R v Qutami [2001] NSWCCA 353
R v Twala (Unreported – NSWCCA 4 November 1994)
Texts Cited: Nil
Category: Principal judgment
Parties: Crown
[AKB] (Offender)
Representation:
Counsel:
C Maxwell QC & R Kotsis (Crown)
C Davenport SC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Offender)

File Number(s): 2016/311049
Publication restriction: Nil

REMARKS ON SENTENCE

In the early morning of 18 October 2016 the offender’s wife burnt to death in the bedroom of her home at 2/33 Clement Street, Guildford. Her husband, the offender, was charged with the deceased’s murder. The Crown case was that the offender introduced accelerant into the bedroom and started the fire. The Crown case was also that when the deceased endeavoured to escape from the room through the door into the hallway of the house the offender actively prevented her from doing so.
The offender stood trial before a jury of 12 and me. On 25 July 2018 the jury found him guilty of murder. He now stands to be sentenced for that offence.
The maximum sentence for murder is life imprisonment and there is a standard non-parole period of 20 years. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court is to impose a sentence of imprisonment for life on a person who…

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 AKB (No. 8)

Details

AGLC: R v AKB (No. 8) [2018] NSWSC 1628
Case: [2018] NSWSC 1628
Decision Date: 02 November 2018

CaseChat Overview and Summary

The defendant, AKB, was charged with murder in the Supreme Court of New South Wales. The offence involved the death of the defendant's wife, who perished in a fire deliberately started by the defendant in their home. The defendant had used an accelerant to ensure the fire would take hold quickly and then prevented the victim from escaping. The case was one of domestic violence, with the defendant's actions being particularly heinous due to the gratuitous cruelty exhibited and the presence of children in the home at the time of the offence. The court was required to consider whether a life sentence should be imposed, despite the severe nature of the crime, and to weigh this against the defendant's prospects of rehabilitation, which were deemed unfavourable due to the defendant's denial of responsibility.

The primary legal issue before the court was the appropriate sentence for the offence of murder, which was clearly of high objective seriousness but not so extreme as to warrant a life sentence. The court needed to consider the aggravating factors present, such as the gratuitous cruelty and the impact on the children, alongside the defendant's prospects for rehabilitation. The sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW) were to be applied, with particular attention to section 61(1) which mandates consideration of the community interest in protection and specific deterrence. The court also had to ensure consistency in sentencing for similar offences, particularly those involving spousal murders.

In delivering the judgment, the court found that while the offence was egregious, imposing a life sentence would not adequately serve the community interest in specific deterrence or protection, given the defendant's age and the minimal planning involved in the crime. The court concluded that a lesser sentence would satisfy these interests while also considering the defendant's prospects of rehabilitation, which were deemed unfavourable due to the defendant's continuing denial of responsibility. The court decided that a life sentence was not appropriate and instead imposed a sentence that balanced the need for punishment with the likelihood of the defendant reoffending, given their age at the earliest possible release date.

Orders