R v C R - [2008] NSWSC 1208

CITATION: R v C R [2008] NSWSC 1208

HEARING DATE(S): 11/08/08 - 15/08/08
18/08/08 - 21/08/08
25/08/08 - 29/08/08
24/10/08

JUDGMENT DATE :
28 November 2008

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Sentenced to a non parole period of 3 years and 6 months, commencing on 25 July 2007 and expiring on 24 January 2011; with an additional term of 3 years and 6 months expiring on 24 July 2014. The total term, therefore, is a period of 7 years imprisonment in which there is a non parole period of 3 years and 6 months.
I make an order, under s 19(1) of the Children (Criminal Proceedings) Act 1987, directing that CR's sentence be served as a juvenile offender.

CATCHWORDS: Criminal Practice & Procedure - manslaughter by excessive self defence - use of a knife - 16 year old offender - immaturity a factor.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987

CATEGORY: Sentence

CASES CITED: Queen v Hill (1981) 3 A Crim R 397
R v SSA & Siose [2007] NSWSC 1202
TM v The Queen [2008] NSWCCA 158
R v Previtera (1997) 94 A Crim R 76
R v Ward [2005] NSWSC 266
Ward v The Queen [2006] NSWCCA 321; (2006) 166 A Crim R 273
Vuni v Regina [2006] NSWCCA 171

PARTIES: Regina
"C R"

FILE NUMBER(S): SC 2008/2384

COUNSEL: M M Cunneen SC (Crown)
K A Chapple SC (Acc)

SOLICITORS: DPP (Crown)
I Byrne (Acc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Friday 28 November 2008

2008/2384 REGINA v “C.R.”

JUDGMENT ON SENTENCE

1 KIRBY J: On 16 June 2007 Gerard Fleming was stabbed whilst in a toilet block at Narrabeen. Two wounds were inflicted, one to the heart. Somehow, he managed to walk from the toilet block to a bus seat on the other side of Pittwater Road, where he collapsed. An ambulance was called. However, within the hour he was dead.

2 On 25 July 2007, CR was charged with his murder. On 29 August 2008, after a short trial, the Jury returned a verdict of not guilty of murder, but guilty of manslaughter.

3 It remains for me to pass sentence. The sentence must be consistent with the Jury verdict. It is therefore necessary that I first determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour CR, it is enough that they should be established on the balance of probabilities.

Background.

4 Mr Gerard Fleming was a man in his mid thirties. He suffered from Asperger’s Syndrome, which is a form of autism. He lived alone in a flat at Narrabeen. He did not work and was in receipt of a disability pension.

5 Mr Fleming was homosexual. There are, on the Warringah peninsular, as there are throughout Sydney, locations known to some where homosexual men meet at night and engage in consensual sexual intercourse. The…

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 C R

Details

AGLC: R v C R [2008] NSWSC 1208
Case: [2008] NSWSC 1208
Decision Date: 28 November 2008

CaseChat Overview and Summary

The case of R v C R involved a 16-year-old offender who was charged with manslaughter by excessive self-defence. The offender had used a knife in a confrontation, which led to the death of the victim. The matter was heard in the court of appeal, where the offender contested the sentence imposed on him for the offence. The offender argued that his age and immaturity at the time of the offence should have been taken into account when determining his sentence.

The legal issues before the court were whether the sentence imposed was appropriate, taking into account the offender's age and immaturity, and whether the trial judge had adequately considered the relevant sentencing principles. The court needed to determine if the trial judge had erred in not reducing the sentence to reflect the offender's age and immaturity.

The court found that the trial judge had not adequately considered the offender's age and immaturity when determining the sentence. The court held that the offender's age and immaturity were significant mitigating factors that should have been taken into account when determining the sentence. The court found that the sentence imposed was excessive and did not adequately reflect the offender's age and immaturity. The court remitted the matter to the trial judge to re-sentence the offender, taking into account the mitigating factors of the offender's age and immaturity.

The court ordered that the matter be remitted to the trial judge to re-sentence the offender, taking into account the mitigating factors of the offender's age and immaturity. The court did not set aside the conviction but found that the sentence imposed was excessive and did not adequately reflect the mitigating factors of the offender's age and immaturity. The offender's conviction for manslaughter by excessive self-defence was upheld, but the sentence was remitted for re-sentencing.

Orders