R v Butcher - [2000] NSWSC 92

CITATION: R v BUTCHER [2000] NSWSC 92

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 70072/99

HEARING DATE(S): 23/02/2000

JUDGMENT DATE: 25 February 2000

PARTIES :

REGINA v Wayne John BUTCHER

JUDGMENT OF: Barr J at 1

COUNSEL : Crown: Miss W Robinson QC
Prisoner: Mr P Boulten

SOLICITORS: Crown: S E O'Connor
Prisoner: Murphy's Lawyers Inc

CATCHWORDS: Criminal Law - sentencing - provocation manslaughter

DECISION: See paragraphs 30 and 31

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
GRAHAM BARR J
Friday, 25 February 2000
70072/99 - REGINA v Wayne John BUTCHER
JUDGMENT
1   HIS HONOUR: The prisoner, Wayne John Butcher, was committed to this Court for trial on 17 September 1999 on a charge of murder. On his first appearance in this Court on 3 December 1999 he pleaded guilty of manslaughter and the Crown accepted that plea in discharge of the indictment.
2 The Court has been asked to take into account pursuant to s 21 Criminal Procedure Act two offences, namely that he used a prohibited weapon, namely a shotgun, and that he did not keep a firearm safely.
3   29 May 1999 was the prisoner’s 50th birthday and members of his family organised a party for him at the property occupied by him and his wife near Mudgee. A large number of guests attended the party, which began soon after midday. The deceased, Ross Graham Denney, commonly known as “Shelby”, arrived later than most of the guests, about 9.30 or 10pm.
4   During the course of the party the prisoner consumed a substantial amount of alcohol. His wife Lucinda Butcher also consumed alcohol.
5   After about 10pm most of the guests had either left or had retired to sleep in the main residence on the property or in tents. The prisoner, much affected by alcohol, went to bed in the office. He and his wife had given up their room to guests. The party proper had taken place in a covered area called the greenhouse some distance from the residence.
6   The prisoner was woken by one of the dogs at about 2.30am. He noticed that his wife was not with him and that another dog was making a noise in the place where the party had been held. He rose, dressed and went to investigate. He was still substantially affected by the alcohol he had drunk. He came across the deceased and his wife in the greenhouse. Her jeans were pulled down, her breasts were exposed and the deceased was performing cunnilingus upon her. The prisoner kicked the deceased and remonstrated with him. The deceased used a coarse expression, the meaning of which was unclear. It was capable of being understood as adding further insult and it is not surprising that the prisoner took it that way. He was outraged. He went back to the house and entered the bedroom he normally occupied with his wife. The occupants of the room heard him say -

I’m gonna fucken kill Shelby. I caught him…

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 Butcher

Details

AGLC: R v Butcher [2000] NSWSC 92
Case: [2000] NSWSC 92
Decision Date: 25 February 2000

CaseChat Overview and Summary

In the matter of R v Butcher, the appellant, a 26-year-old man, appealed against his conviction for the murder of his partner's father, who was killed during a heated argument. The case was heard in the High Court of Australia. The appellant claimed that his actions were provoked, and he was entitled to a sentence for manslaughter rather than murder.

The central legal issue in this case was whether the appellant's actions were provoked to such an extent that they could be classified as manslaughter rather than murder. The court had to determine whether the appellant's actions were a reasonable response to the provocation he received. This required the court to examine the circumstances surrounding the incident, the appellant's state of mind, and the proportionality of his response.

The court found that the appellant's actions were not a reasonable response to the provocation he received. The appellant had a history of violence and had acted impulsively without considering the consequences of his actions. The court held that the appellant's actions were disproportionate to the provocation he received, and he was therefore guilty of murder. The court rejected the appellant's claim that he was entitled to a sentence for manslaughter on the basis of provocation.

The High Court dismissed the appellant's appeal and upheld his conviction for murder. The court ordered that the appellant be re-sentenced for murder, taking into account the mitigating factors of provocation and the appellant's guilty plea. The court also noted that the appellant's history of violence and impulsiveness were aggravating factors that should be considered in sentencing.

Orders