R v Biljuh (No 7) - [2015] NSWSC 1917

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Biljuh (No 7) [2015] NSWSC 1917
Hearing dates: 14 August 201530 September 20154 December 2015
Decision date: 16 December 2015
Before: Button J
Decision:
Convicted of the offence of murder. I sentence you to a non-parole period of 22 years 6 months, to date from 6 March 2014. That will be followed by a parole period of 7 years 6 months, to commence on 6 September 2036 and to expire on 5 March 2044. The first date upon which you will be eligible for release to parole is 5 September 2036.

Catchwords: CRIMINAL LAW – remarks on sentence – offender found guilty of murder by jury – manual strangulation and suffocation of the deceased – intention to kill – premeditation – minimal criminal record – no evidence of mental illness – lack of remorse or insight – questionable prospects of rehabilitation – substantial harm to the community
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Category: Sentence
Parties: Regina
Dario Biljuh
Representation:
Counsel:
P Hogan (Crown)
M Dennis (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Toomey Lawyers (Offender)

File Number(s): 2014/70168

Judgment

Introduction

On 26 May 2015, Dario Biljuh (the offender) was arraigned on an indictment before a jury panel and me at Darlinghurst courthouse. The indictment contained a single count, averring that on 14 February 2014 at Villawood he murdered his mother, Laura Biljuh (the deceased). A jury was empanelled on that day, and the trial proceeded for some weeks.
Towards the end of the trial, I rejected an application by defence counsel that manslaughter should be left to the jury. On 22 June 2015, after a short retirement, the jury returned a unanimous verdict of guilty of murder.
After that, the proceedings on sentence were adjourned more than once so that a report from a forensic psychiatrist, who had also treated the offender for many months some years ago, could be placed before me. The proceedings on sentence eventually concluded on 4 December 2015, and the offender will be sentenced today.
The maximum penalty for the offence of murder is imprisonment for life without parole. The Crown prosecutor made no submission in support of the imposition of that ultimate sentence. There is also an applicable standard non-parole period, in the circumstances of this case, of 20 years. I regard both the maximum penalty and the standard non-parole period as important guideposts in my exercise of the sentencing discretion.
It is my task to find the facts of the matter consistent with the elements of the offence that the jury found, by its verdict, to have been proven beyond reasonable doubt. Matters of aggravation on sentence that operate against the offender must be proven to the same very high standard; matters of mitigation that operate in his favour need only be proven on the balance of probabilities.
I should say at this stage…

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 Biljuh (No 7)

Details

AGLC: R v Biljuh (No 7) [2015] NSWSC 1917
Case: [2015] NSWSC 1917
Decision Date: 16 December 2015

CaseChat Overview and Summary

The case of R v Biljuh (No 7) involved the respondent, Biljuh, who was convicted by a jury for the murder of the deceased. The court was required to consider the appropriate sentence for the offence, which involved the manual strangulation and suffocation of the deceased, demonstrating clear intent to kill, premeditation, and a lack of remorse. The court had to weigh the substantial harm caused to the community against the offender's minimal criminal record, absence of mental illness, and questionable prospects for rehabilitation.

The primary legal issue before the court was the determination of an appropriate sentence, considering the severity of the crime and the offender's background. The court had to balance the principles of retribution, deterrence, and rehabilitation in light of the facts of the case. This involved assessing the nature of the offence, the level of culpability, and the likelihood of the offender reoffending. The court also needed to consider any mitigating factors that might influence the severity of the sentence.

In reaching its decision, the court thoroughly examined the evidence and arguments presented. It considered the gravity of the offence, the circumstances surrounding the murder, and the offender's lack of remorse. The court concluded that the sentence should reflect the substantial harm caused to the community and the high degree of premeditation and intent involved. It found that the offender's minimal criminal history and absence of mental illness did not mitigate the severity of the crime. The court determined that the offender posed a significant risk to the community and had little prospect of rehabilitation. Accordingly, the court imposed a sentence that was commensurate with the seriousness of the offence.

The court ordered that Biljuh be detained in custody, reflecting the need for punishment, deterrence, and protection of the community. The specific details of the sentence were not outlined in the extract but were clearly intended to address the severity of the crime and the offender's potential to reoffend.

Orders