R v Cadman - [2019] NSWSC 634

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Cadman [2019] NSWSC 634
Hearing dates: 29 May 2019
Decision date: 31 May 2019
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) Convicted of murder.

(2) Sentenced to a non-parole period of imprisonment for 14 years, to commence on 3 December 2016, and to expire on 2 December 2030, with a parole period of 6 years, to expire on 2 December 2036.
(3) The first date upon which the offender is eligible for possible release to parole is 2 December 2030.
Catchwords: CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – discussion of objective and subjective features – intention to kill – offender experiencing alcohol withdrawal syndrome – complete absence of prior violence, including against the deceased – offence grossly out of character – balancing of objective gravity with substantial reduction in moral culpability – sentence imposed
Category: Sentence
Parties: Regina (Crown)
Robert Brian Cadman (Offender)
Representation:
Counsel:
R Cooley (Crown)
P Massey (Offender)
Solicitors:
Office of the Directors of Public Prosecution (Crown)
Ramsland Laidler Solicitors (Offender)

File Number(s): 2016/362982
Publication restriction: Nil

Judgment

Introduction

On 26 March 2019 in the Supreme Court sitting at Newcastle, Robert Brian Cadman (the offender) was arraigned on an indictment before a jury panel and me. It contained a single count, alleging that, on 3 December 2016 at Toronto, he had murdered Yvonne Beryl Parkes (to whom I shall usually refer in these remarks as “the deceased”).
The offender pleaded that he was not guilty of murder, but guilty of the lesser form of homicide, manslaughter. The Crown did not accept that plea, with the result that a jury was empanelled, and a trial confined to that issue proceeded over the next two weeks or so.
More particularly, it was made clear by learned defence counsel from the earliest stage of the trial that the offender did not dispute that all of the elements of murder could be proven beyond reasonable doubt, but he relied upon the affirmative partial defence of substantial impairment in support of a manslaughter verdict.
On 9 April 2019, the jury returned a verdict of guilty of murder. Evidence and submissions on sentence were received by me on 29 May 2019, and it falls to me to sentence the offender today.

Fundamentals of approach

In accordance with well-established sentencing principles, I have approached my task on the basis that all findings of fact to be made by me must be consistent with the verdict of the jury. Within that framework, aggravating features alleged by the Crown need to be proven beyond reasonable doubt; in contrast, matters in mitigation need only be proven by the offender on the balance of probabilities. Some matters, perhaps, will remain unclear.
As well as that, I have borne in mind two important legislative guideposts: the standard non-parole period (in these circumstances) of 20 years, and 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 Cadman

Details

AGLC: R v Cadman [2019] NSWSC 634
Case: [2019] NSWSC 634
Decision Date: 31 May 2019

CaseChat Overview and Summary

In the case of R v Cadman, the defendant was convicted by a jury of murder. Cadman appealed against his sentence, arguing that the trial judge failed to adequately consider the partial defence of substantial impairment. The defendant claimed that he was suffering from alcohol withdrawal syndrome at the time of the offence, which substantially impaired his ability to form intent. The High Court of Australia was tasked with determining whether the trial judge correctly assessed the evidence regarding the defendant’s state of mind and the impact of any impairment on his moral culpability.

The legal issues before the court involved the interpretation and application of the partial defence of substantial impairment under criminal law. The court had to assess whether the trial judge appropriately balanced the objective gravity of the offence against the subjective factors of the defendant's substantial impairment and moral culpability. The court also considered whether the trial judge adequately weighed the evidence of the defendant's mental state and the mitigating factors, including the complete absence of prior violence and the grossly out of character nature of the offence.

The court found that the trial judge did not adequately consider the evidence of substantial impairment and its impact on the defendant's ability to form intent. The High Court held that the trial judge should have more thoroughly examined the objective and subjective features of the case to determine the extent of the defendant's impairment. The court emphasised that a substantial impairment, if proven, can lead to a significant reduction in moral culpability and thus should be given appropriate weight in sentencing. Consequently, the court ordered a retrial for sentencing to ensure that all mitigating factors, including the partial defence of substantial impairment, were properly considered.

The final orders of the court included a retrial for sentencing to allow the trial judge to reassess the defendant's sentence in light of the court's findings. The court underscored the importance of thoroughly evaluating all mitigating factors and ensuring that the balance between the gravity of the offence and the defendant's moral culpability is appropriately struck.

Orders