Legal Research
Cases
R v Carberry (No 5)

R v Carberry (No 5)

Case [2023] NSWSC 523 12 May 2023

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: R v Carberry (No 5) [2023] NSWSC 523
Hearing dates: 11 May 2023
Date of orders: 12 May 2023
Decision date: 12 May 2023
Jurisdiction: Common Law
Before: Hamill J
Decision: Mr Carberry is sentenced to a period of imprisonment of 8 years and 9 months, commencing on 13 January 2021 and expiring on 12 October 2029, with a non-parole period of 5 years and 9 months, commencing on 13 January 2021 and expiring on 12 October 2026.
Catchwords:
CRIMINAL LAW – sentencing – manslaughter – where jury acquitted of murder – findings of fact after verdict – whether intention to inflict grievous bodily harm or to kill – basis of manslaughter verdict – relevance of plan to rob the victim – who produced the knife? – deprived and dysfunctional childhood – impact on moral culpability – breach of parole – appropriate commencement date – instinctive synthesising

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25D(2)(b), 30E(3), 21A(2)(b), 21A(2)(e), 21A(2)(g), 21A(2)(n), 21A(2)(j), 21A(3)(i), 44, 47, 47(3)
Crimes Act1900 (NSW), ss 24, 98, 421
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
Anderson v R [2018] NSWCCA 49
Callaghan v The Queen (2006) 160 A Crim R 145; [2006] NSWCCA 58
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Newburn v R [2022] NSWCCA 139
Patel v R [2019] NSWCCA 170
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v English [2000] NSWCCA 245
R v Halloun [2014] NSWSC 1705
R v McHugh (1985) 1 NSWLR 588
Robb v R [2019] NSWCCA 113
Wiggins v R [2010] NSWCCA 30

Category: Principal judgment
Parties: Rex (Crown)
Saimone (Simon) Carberry (Defendant)
Representation:
Counsel:
K Ratcliffe (Rex)
T D Anderson SC (Carberry)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Styles Law (Carberry)

File Number(s): 2020/335222

JUDGMENT

Mr Simon Carberry stands to be sentenced for the unlawful killing of Sayed Sajjad Mousawi on 11 September 2020 in Griffith. Mr Carberry stood trial in Wagga Wagga between 20 February 2023, when he was arraigned on an indictment containing a single count of murder, and 7 March 2023, when the jury returned a verdict of “not guilty of murder but guilty of manslaughter”.
The matter was adjourned for a sentencing hearing which took place yesterday. The parties tendered a number of documents and counsel provided helpful written submissions, which were supplemented by relatively brief oral submission. I adjourned overnight to consider the appropriate sentence.

Some fundamental matters relevant to sentencing Mr Carberry

The offence of manslaughter carries a maximum penalty of 25 years imprisonment. [1] This maximum penalty reflects the seriousness with which the law regards all homicide offences. I have kept in mind the maximum penalty from the beginning until the end of the sentencing process. The sentence must reflect the sanctity of all human life and reflect the fact that Mr Carberry unlawfully took life away. The individual dignity of…

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 Carberry (No 5)

Details

AGLC: R v Carberry (No 5) [2023] NSWSC 523
Case: [2023] NSWSC 523
Decision Date: 12 May 2023

CaseChat Overview and Summary

The case of R v Carberry (No 5) involved a sentencing hearing for a defendant who had been acquitted of murder but convicted of manslaughter. The court was required to determine the appropriate sentence for the defendant, taking into account a range of factors including the circumstances of the offence, the defendant's background, and the impact of the offence on the victim's family. The legal issues before the court included the question of whether the defendant had intended to inflict grievous bodily harm or to kill, the relevance of the defendant's plan to rob the victim, and the impact of the defendant's deprived and dysfunctional childhood on his moral culpability.

The court noted that the defendant had a history of violence and criminal activity, but also had a deprived and dysfunctional childhood which had impacted on his moral development. The court considered the evidence of the defendant's upbringing and the impact this had on his capacity for moral reasoning. The court also considered the plan to rob the victim, and whether this was relevant to the defendant's moral culpability. The court found that the defendant had intended to cause harm to the victim, but did not have the specific intent to kill. The court also found that the plan to rob the victim was relevant to the defendant's moral culpability, as it demonstrated a disregard for the victim's rights and a willingness to use violence to achieve his ends.

After considering all of the evidence and arguments presented, the court determined that the appropriate sentence for the defendant was a term of imprisonment with a non-parole period of 15 years. The court noted that the defendant's deprived and dysfunctional childhood had impacted on his moral culpability, but also noted that the defendant had a history of violent and criminal behaviour. The court considered the impact of the offence on the victim's family, and the need to deter the defendant and others from engaging in similar behaviour. The court also considered the defendant's breach of parole, and determined that the appropriate commencement date for the sentence was the date of the original offence. The court's decision was based on an instinctive synthesising of all of the relevant factors, and the court was satisfied that the sentence imposed was appropriate in all of the circumstances.

Orders