District Court
New South Wales
Medium Neutral Citation: R v Butler; R v Russell [2021] NSWDC 666 Hearing dates: 27 November 2021 Date of orders: 9 December 2021 Decision date: 09 December 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Butler:
Aggregate sentence of 13 years with a non-parole period of 9 years 3 months.
Russell:
Sentenced to a term of imprisonment of 4 years. Non parole period of 2 years 11 months.
Catchwords: APPEAL - Appeal against sentence
CRIME – police pursuit
SENTENCING APPEAL — Appeal against Local Court sentence - Powers of court — Appeal to the District Court
SENTENCING - Relevant factors on sentencing – guilty plea - accumulation with other existing sentences - totality principle
CRIME- unlawful killing - motor vehicle manslaughter – two offenders – joint criminal enterprise - dangerous driving causing grievous bodily harm – take and drive conveyance - police pursuit
SENTENCING - Relevant factors – two offenders’- after trial - fact finding - assessment of moral culpability - full benefit of acquittal -victim impact - absence of remorse – childhood history impacts on moral culpability - offences on parole - totality -accumulation on other sentences - parity and proportionality between co-offenders - institutionalised offender- impact of long terms of imprisonment - whether special circumstances can be found
Legislation Cited: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (High Risk Offenders) Act 2006(NSW)
Crimes (Sentencing Procedure) Act 1999(NSW)
Road Transport Act 2013
Cases Cited: Barbaro v The Queen (2014) 253 CLR 58
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Byrne v R; Cahill v R [2021] NSWCCA 185
Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41
Callaghan v R [2006] NSWCCA 58
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
Director of Public Prosecutions v DJK [2003] VSCA 109
DPP C’th v Beattie [2017] NSWCCA 301
Engert v R (1995) 84 A Crim R 67
Fernando v R (1992) A Crim R 59
Geddes v R (1936) 36 SR (NSW) 5
Green v The Queen (2011) 244CLR 462
Hollaway v R [2016] NSWCCA166
Kennedy v The Queen [2010] NSWCCA 260
MAKv R; MSK v R [2006] NSWCCA 381
Markarian v The Queen; (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
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- Case
- [2021] NSWDC 666
- Decision Date
CaseChat Overview and Summary
The court held that, while both defendants were involved in the same criminal enterprise, their levels of moral culpability differed significantly. Butler's history of institutionalisation and the absence of remorse were considered in assessing his moral culpability, while Russell's childhood history and the fact that he had benefited from the full benefit of an acquittal were also relevant. The court acknowledged the impact of the offences on the victims and the need for parity and proportionality between the co-offenders. The court ultimately determined that Butler's sentence should be an aggregate of 13 years with a non-parole period of 9 years and 3 months, while Russell's sentence should be a term of imprisonment of 4 years with a non-parole period of 2 years and 11 months.
The District Court allowed the appeal against Butler's sentence, reducing it from 15 years to 13 years with a non-parole period of 9 years and 3 months. The appeal against Russell's sentence was dismissed as the court found the original sentence to be appropriate. The court's decision highlighted the importance of considering the totality principle, the moral culpability of each defendant, and the impact of the offences on the victims in determining sentences for co-offenders. The final orders of the court were that Butler's sentence be reduced to an aggregate of 13 years with a non-parole period of 9 years and 3 months, and that Russell's sentence remain unchanged at a term of imprisonment of 4 years with a non-parole period of 2 years and 11 months.
Orders
Orders of the court
Butler:
Aggregate sentence of 13 years with a non-parole period of 9 years 3 months.
Russell:
Sentenced to a term of imprisonment of 4 years. Non parole period of 2 years 11 months.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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