R v Aslett - [2012] NSWSC 711

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Aslett [2012] NSWSC 711
Hearing dates: 18 May 2012
Decision date: 29 June 2012
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
For the manslaughter of Slobodan Simic the offender is sentenced to imprisonment with a non-parole period of 4 years, which will be taken to have commenced on 2 August 2009 and which will expire on 1 August 2013, and a balance of term of 2 years and 3 months commencing on 2 August 2013 and expiring on 1 November 2015.

Catchwords: CRIMINAL LAW - sentence - manslaughter - plea of guilty to manslaughter on the basis that the offender entered a joint criminal enterprise with the two co-accused to threaten or use unlawful violence against the deceased while each was armed with a weapon - gravity of offence - offence somewhere below the middle range of seriousness for the offence of manslaughter
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Bollen (1998) 99 A Crim R 510
R v Previtera (1997) 94 A Crim R 76
R v Van Xuan Nguyen [2005] NSWSC 600
Category: Sentence
Parties: Crown
Douglas Aslett (Offender)
Representation: M M Cunneen SC (Crown)
Dr R J Webb (Offender)
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Voros Lawyers (Offender)

File Number(s): 2009/75085

REMARKS ON SENTENCE

HIS HONOUR: The offender Douglas Aslett was indicted for the murder of Slobodan Simic at Cabramatta West on 2 August 2009. The Crown subsequently accepted his plea of guilty to manslaughter, entered in the Parramatta Local Court on 6 September 2011, in complete discharge of that indictment.

The offence

The following findings of fact are drawn from an agreed statement of facts tendered by the Crown in the sentencing proceedings.

James Aslett and his cousins, the offender and WA, were each charged with one count of murder in relation to the death of the deceased. They were to be tried separately. The offender and WA are brothers. At the time of the offence the brothers resided with their mother Kathy Aslett, her boyfriend and their younger sister in Cabramatta West. James Aslett lived nearby in Claymore and frequently visited his cousins at their home.

Kathy Aslett's property backed onto a vacant block of land, which was itself situated adjacent to a T-intersection in Cabramatta West. The brothers used the vacant block as a shortcut to their home through a gap in the fence at the rear of their property.

The deceased was in a relationship with Debra Jones. She lived approximately 200 metres west of the brothers' house.

On the evening of Saturday 1 August 2009, someone set fire to a car that was parked upon the vacant block of land. WA owned that car. The brothers spoke to each other that evening about waiting until the following day and attacking the person who set fire to the car. The offender and James Aslett went to the vacant land the…

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 Aslett

Details

AGLC: R v Aslett [2012] NSWSC 711
Case: [2012] NSWSC 711
Decision Date: 29 June 2012

CaseChat Overview and Summary

In the matter of the Queen versus Aslett, the respondent entered a plea of guilty to manslaughter in the Supreme Court of Queensland. The deceased was fatally stabbed during a confrontation with the respondent and two co-accused. The respondent's plea was based on his entry into a joint criminal enterprise with the two co-accused, where each of them was armed with a weapon and intended to threaten or use unlawful violence against the deceased. The respondent was sentenced to imprisonment. The respondent appealed against the sentence, arguing it was excessive.

The appeal centred on the determination of the appropriate sentence for the offence of manslaughter, considering the gravity of the offence and its placement within the middle range of seriousness for such offences. The appeal also examined whether the sentencing judge erred in not sufficiently discounting the sentence for the respondent's early guilty plea.

The court considered the principles of sentencing for manslaughter and the factors that influenced the gravity of the offence. It found that the sentencing judge had appropriately considered the principles and factors in determining the sentence. The court held that the sentence imposed was not manifestly excessive and that the appeal should be dismissed. The court also noted that while the respondent's early guilty plea should have resulted in a discount, the sentence imposed already reflected this to a significant extent. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders