R v Aslett - [2011] NSWSC 650

Supreme Court

New South Wales

Medium Neutral Citation: R v Aslett [2011] NSWSC 650
Hearing dates: 14 June 2011
Decision date: 01 July 2011
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
For the manslaughter of Slobodan Simic the offender is sentenced to a non-parole period of 4 years and 6 months commencing on 12 November 2009 and expiring on 11 May 2014 with a balance of term of 2 years and 6 months commencing on 12 May 2014 and expiring on 11 November 2016. The first day upon which the offender will be eligible for release on parole is 12 May 2014.

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

CRIMINAL LAW - sentence - manslaughter - relevant factors - nature and circumstances of offender - prior criminality - age of offender - substance abuse - limited intelligence - inability to control temper - finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999
CRIMINAL LAW - sentence - manslaughter - relevant factors - guilty plea - discount of 15 per cent appropriate - sentenced to imprisonment for 7 years with a non-parole period of 4 years and 6 months
Legislation Cited: 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
James Aslett (Offender)
Representation: M M Cunneen SC (Crown)
D N Stewart (Offender)
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Shiranica Danieli Lawyers (Offender)

File Number(s): 2009/249967
Publication restriction: Not for publication. Co-accused awaiting trial.

remarks on sentence

HIS HONOUR: The offender James Aslett was indicted for the murder of Slobodan Simic at Cabramatta West on 2 August 2009. The Crown accepted his plea of guilty to manslaughter, entered on the first day of his trial on 2 May 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.

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

The property backed onto a vacant block of land, which was itself situated adjacent to a T-intersection in Cabramatta West. The brothers used 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 [2011] NSWSC 650
Case: [2011] NSWSC 650
Decision Date: 01 July 2011

CaseChat Overview and Summary

The case of R v Aslett involved the sentencing of the defendant, who had entered a guilty plea to manslaughter. The court was required to determine the appropriate sentence for the defendant, who had participated in a joint criminal enterprise with two co-accused, where the intent was to threaten or use unlawful violence against the deceased while armed with a weapon. The offence was considered to be below the middle range of seriousness for manslaughter.

The legal issues before the court included assessing the gravity of the offence, and determining the appropriate discount for the defendant's guilty plea. The court also had to consider various factors relating to the defendant's character and circumstances, such as his prior criminality, age, substance abuse, limited intelligence, and inability to control his temper. The court found that these factors amounted to special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

After considering the relevant factors, the court decided that an appropriate discount of 15 per cent should be applied to the defendant's sentence. The court sentenced the defendant to imprisonment for 7 years, with a non-parole period of 4 years and 6 months. This sentence took into account both the gravity of the offence and the mitigating factors present in the case.

Orders