R v Attwater; R v Maris - [2017] NSWSC 1710

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Attwater; R v Maris [2017] NSWSC 1710
Hearing dates: 8 November 2017
Decision date: 08 December 2017
Jurisdiction: Common Law
Before: Fullerton J
Decision:
Attwater – Aggregate term of imprisonment for 19 years to commence from 5 September 2017 with a non-parole period of 14 years and 3 months.
Maris - Aggregate term of imprisonment for 9 years to commence from 5 September 2017 with a non-parole period of 6 years and 9 months.
Catchwords: CRIMINAL LAW – sentence – unlawful and dangerous act manslaughter – aggravated sexual assault – hindering discovery of evidence concerning serious indictable offence – sexual act of “fisting” – issue of consent – intoxication of offenders and deceased – delay in prosecution – no remorse – harm to community taken into account under s 28(4) of the Crimes (Sentencing) Procedure Act 1999 (NSW)
Legislation Cited: Coroners Act 2009 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing) Procedure Act 1999 (NSW)
Cases Cited: Coles v R [2016] NSWCCA 32
Hurst v R [2017] NSWCCA 114
McKittrick v R [2014] NSWCCA 128
Mill v R [1988] HCA 70; 166 CLR 59
R v De Simoni [1981] HCA 31; 147 CLR 383)
R v Johnson [2005] NSWCCA 186
Todd v R [1982] 2 NSWLR 517
Category: Sentence
Parties: The Crown
Adrian Richard Attwater
Paul Eric Maris
Representation:
Counsel:
P Strickland SC / G Huxley (Crown)
N Steel (Offender - Attwater)
E Wasilenia (Offender - Maris)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender - Attwater)
Stidwill Solicitors (Offender - Maris)

File Number(s): 2016/192006; 2016/190670

REMARKS ON SENTENCE

HER HONOUR: At 7.20am on 27 January 2011 uniformed police attended at Ten Mile Beach, a secluded area of coastline near Iluka in northern New South Wales in response to receiving a report via emergency services of a naked woman, believed to be deceased, lying on the sand. That woman was later identified as Lynette Daley. Ms Daley is also known as Norma Daley.
Paramedics were already in attendance when police arrived after responding to a triple-0 call placed at 6.01am and a further call at 6.08am by a person who identified himself as Paul Maris.
In the first of the triple-0 calls Mr Maris was asked by the emergency services operator whether Ms Daley had collapsed or whether she had been pulled from the water. He said she was not in the water and it did not appear to him that she had a fit, rather she just stopped breathing. He told the operator that his friend, Adrian Attwater, was administering CPR but that Ms Daley was not responding.
Both triple-0 calls were recorded. Both calls were placed in Mr Attwater’s presence. He is recorded in the background urging Ms Daley to respond to his efforts to revive her. At times he uses harsh language when referring to her. He is recorded saying, “Come on. Wake up, babe. Where are ya … ya…

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.

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Details

Case: [2017] NSWSC 1710
Decision Date: 08 December 2017

CaseChat Overview and Summary

In the case of R v Attwater and R v Maris, the defendants were convicted of various criminal offences, including unlawful and dangerous act manslaughter, aggravated sexual assault, and hindering the discovery of evidence relating to a serious indictable offence. The matter was heard in the Supreme Court of New South Wales. The nature of the dispute centred on the appropriate sentences to be imposed on the defendants, given the gravity of their crimes and the circumstances surrounding the offences.

The legal issues the court was required to decide included the appropriate sentence for unlawful and dangerous act manslaughter, the impact of intoxication on the defendants' culpability, the relevance of consent in the context of the aggravated sexual assault, and the delay in prosecution. Furthermore, the court had to consider whether the harm to the community warranted a higher sentence under section 28(4) of the Crimes (Sentencing) Procedure Act 1999 (NSW).

The court considered the circumstances of the case, including the nature of the sexual act, the intoxication of all parties involved, and the lack of remorse shown by the defendants. The court emphasised the importance of the harm to the community in sentencing and concluded that the defendants' actions had caused significant harm. Consequently, the court determined that the appropriate sentences for the defendants were to be calculated by taking into account the harm to the community under section 28(4) of the Crimes (Sentencing) Procedure Act 1999 (NSW). The final orders of the court are not provided in the text.

Orders