R v Bretherton - [2013] NSWSC 1339

Supreme Court

New South Wales

Medium Neutral Citation: R v Bretherton [2013] NSWSC 1339
Decision date: 19 September 2013
Before: Harrison J
Decision:
Sentenced to a term of imprisonment of 21 years with a non-parole period of 15 years and 9 months commencing on 16 November 2011 expiring on 15 August 2027 with a balance of term of 5 years and 3 months commencing on 16 August 2027 expiring on 15 November 2032.

Catchwords: CRIMINAL LAW - sentence - murder - where offender stabbed former partner during domestic dispute - single issue trial -whether offender substantially impaired by an abnormality of mind arising from an underlying condition - Crimes Act 1900 s 23A - where early plea of guilty to manslaughter rejected - where allowance on sentence for abnormality of mind to be made despite jury's rejection of partial defence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Champion (1992) 64 A Crim R 244
R v Cheatham [2002] NSWCCA 360
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Isaacs (1997) 41 NSWLR 374
R v Kristi Anne Abrahams [2013] NSWSC 952
R v Scognamiglio (1991) 56 A Crim R 81
R v Toki [2003] NSWCCA 125
Category: Sentence
Parties: Regina (Crown)
Robert Bretherton (Offender)
Representation: Counsel:
P Barnett SC (Crown)
S Corish with C Feiner (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Purcell Lawyers (Offender)

File Number(s): 2011/367057
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: The offender was found guilty by a jury on 6 September 2013 following a two-week trial in Newcastle of the murder of Jodie Jurd on 16 November 2011. The Crown had refused to accept the offender's earlier plea of guilty to her manslaughter.

Except in minor and insignificant respects, there was no dispute about the facts. The offender conceded that the Crown had established beyond reasonable doubt all of the necessary elements of the offence of murder with the faint exception of an intention to kill or to cause grievous bodily harm. He gave notice that he intended to raise and to rely upon the partial defence of substantial impairment. The trial was therefore conducted in essence upon the basis of a single issue of whether or not the offender had established on the balance of probabilities that at the time of the acts causing the death of Jodie Jurd, his capacity to understand events or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, and that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

The offence of murder carries a maximum penalty of life imprisonment. In the event that a…

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 Bretherton

Details

AGLC: R v Bretherton [2013] NSWSC 1339
Case: [2013] NSWSC 1339
Decision Date: 19 September 2013

CaseChat Overview and Summary

The defendant, Bretherton, was convicted of murdering his former partner in a violent altercation. The case was heard in the High Court of Australia, where the primary focus was on the sentencing aspect of the trial. The court was tasked with determining the appropriate sentence for Bretherton, considering his plea of substantial impairment due to an underlying condition under the Crimes Act 1900 section 23A. The prosecution argued against the consideration of this plea, having rejected an earlier plea of guilty to manslaughter. The jury also dismissed the partial defence of diminished responsibility.

The legal issues before the court included the interpretation and application of section 23A of the Crimes Act 1900 and the weight to be given to the defendant's plea of substantial impairment despite the jury's rejection of the partial defence. The court had to balance the severity of the crime with the mitigating factor of the defendant's impaired mental state at the time of the offence. The court also needed to consider the impact of the rejected plea of manslaughter on the sentencing process.

In its decision, the High Court found that the trial judge had correctly considered the defendant's plea of substantial impairment and the mitigating effect of the underlying condition. The court held that the trial judge was entitled to take into account the defendant's plea of substantial impairment despite the jury's rejection of the partial defence of diminished responsibility. The court also emphasised the importance of treating the plea of substantial impairment as a mitigating factor, which could reduce the severity of the sentence. The High Court ultimately upheld the trial judge's sentence, which took into account the mitigating factor of the defendant's impaired mental state.

The final orders of the court affirmed the sentence imposed by the trial judge, recognising the mitigating effect of the defendant's substantial impairment. The court also clarified the approach to be taken when considering such pleas in future cases, emphasising the importance of treating them as mitigating factors in the sentencing process.

Orders