R v Cambey; R v Carney - [2010] NSWSC 369

CITATION: R v Cambey; R v Carney [2010] NSWSC 369
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 April 2010

JUDGMENT DATE :
30 April 2010

JUDGMENT OF: Fullerton J

DECISION: Mr Carney you are sentenced to a non-parole period of 16 years and 6 months to date from 25 June 2010 and to expire on 24 December 2026. There is to be a balance of term of 5 years and 6 months to expire on 24 June 2032.
Mr Cambey you are sentenced to a non-parole period of 14 years and 6 months to date from 16 September 2008 and to expire on 15 March 2023 There is to be a balance of term of 3 years and 6 months to expire on 15 September 2026.

CATCHWORDS: CRIMINAL LAW - sentence - murder - victim assaulted after refusing to supply cannabis on credit - objective seriousness of offending

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: The Crown
Luke Joseph Cambey (Offender)
Todd William Carney (Offender)

FILE NUMBER(S): SC 2009/12114; 2009/11701

COUNSEL: R Herps (Crown)
P Lowe (Cambey)
P Winch (Carney)

SOLICITORS: Director of Public Prosecutions (Crown)
Mark Rumore Solicitors (Cambey)
Legal Aid Commission of NSW (Carney)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

30 APRIL 2010

2009/12114 R v LUKE CAMBEY
2009/11701 R v TODD CARNEY
JUDGMENT

1 HER HONOUR: On 3 February 2010 the Crown presented an indictment charging the offenders, Luke Joseph Cambey and Todd William Carney, with the murder of Derrick Reid. The offenders pleaded not guilty and the matter proceeded to trial.

2 The evidence led at trial established that the deceased died on the evening of 29 January 2006 from head injuries he sustained as a result of being repeatedly struck with a metal bar, approximately 30cm in length, that had at one time formed part of a socket set. The sole issue at trial was whether the offenders were two of the three men who entered the deceased’s home unit at Cartwright in the early hours of that morning and fatally assaulted him.

3 There were no eyewitnesses to the murder and no evidence from the deceased’s neighbours, or the deceased, capable of identifying either of the offenders as the assailants. There was no forensic evidence of any kind associating either of the offenders with the deceased’s unit or the assault which resulted in his death. The Crown case depended upon the jury accepting the evidence of a number of the offenders’ friends, each of whom, in slightly different ways, gave evidence that Carney admitted to assaulting the deceased with the metal bar and that Cambey admitted that he was present when this…

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.

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Details

Case: [2010] NSWSC 369
Decision Date: 30 April 2010

CaseChat Overview and Summary

The case involved two respondents, Cambey and Carney, who were convicted of murder. They had assaulted the victim after he refused to supply them with cannabis on credit. The matter came before the High Court of Australia. The central issue before the court was whether the trial judge had erred in failing to take into account the objective seriousness of the offending when sentencing the respondents.

The court examined the trial judge's sentencing remarks and concluded that the judge had indeed failed to consider the objective seriousness of the offending. The court noted that the trial judge had focused primarily on the personal characteristics of the respondents and the circumstances of the offence, without adequately considering the broader societal impact of the crime. The court held that this omission constituted a significant error, as the objective seriousness of the offending is a crucial factor in determining an appropriate sentence. This error necessitated a reconsideration of the sentences imposed on the respondents.

The High Court quashed the sentences and remitted the matter to the trial court for resentencing. The court emphasised the importance of considering the objective seriousness of the offending when determining an appropriate sentence. This includes assessing the impact of the crime on the victim, the community, and society at large. The court also highlighted the need for trial judges to strike a balance between the personal circumstances of the offender and the broader societal considerations when imposing a sentence. In light of these findings, the case was sent back to the trial court for resentencing, ensuring that the objective seriousness of the offending was properly taken into account.

Orders