R v Cavanagh, McIvor and O'Keefe - [2021] NSWSC 746

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Cavanagh, McIvor & O’Keefe [2021] NSWSC 746
Hearing dates: 22 April 2021
Date of orders: 25 June 2021
Decision date: 25 June 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
BARRY PAUL CAVANAGH is convicted of the murder of Jamie Phillips. The offender is sentenced to a non-parole period of 15 years and 9 months commencing 11 April 2020 and expiring 10 January 2036 with a balance of term of 5 years and 3 months expiring on 10 April 2041. The offender is first eligible for parole on 10 January 2036.
SEAN DAVID O’KEEFE is convicted of the murder of Jamie Phillips. The offender is sentenced to a non-parole period of 15 years and 9 months commencing 10 October 2019 and expiring 9 July 2035 with a balance of term of 5 years and 3 months expiring 9 October 2040. The offender is first eligible for parole on 9 July 2035.
NATHAN McIVOR is convicted of the murder of Jamie Phillips. The offender is sentenced to a non-parole period of 15 years commencing 7 March 2019 and expiring 6 March 2034 with a balance of term of 5 years expiring 6 March 2039. The offender is first eligible for parole on 6 March 2034.

Catchwords:
CRIME – sentence – murder – joint criminal enterprise – where three co-accused found guilty of murder by jury – where victim died of stab wound – co-accused and victim at premises of well-known drug dealer when offending occurred – witness heard co-accused and victim fighting and subsequently saw body of the victim – victim’s body dumped on side of road– alternative bases put forward at trial by Crown – joint criminal enterprise to inflict grievous bodily harm or joint criminal enterprise to assault deceased where parties contemplated the possibility that grievous bodily harm would be inflicted – evidence not sufficient to prove beyond reasonable doubt that offenders agreed to inflict grievous bodily harm on deceased – offending just below mid-range of objective seriousness – parity amongst offenders – no finding of special circumstances – two offenders on parole at time of offending - importance of deterrence
SENTENCING – sentencing procedure – victim impact statements – where parts of statements attacking offender, expressing opinions about length of sentence, or giving evidence about medical condition rejected – where rest of statements taken into account

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 26, 28, 30E, 30F
Crimes Legislation Amendment (Victims) Act 2018 (NSW)

Cases Cited:
Jonson v R [2016] NSWCCA 286
R v Lulham [2016] NSWCCA 287
R v Qutami [2001] NSWCCA 353

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
Barry Paul Cavanagh (Offender)
Nathan McIvor (Offender)
Sean David O’Keefe (Offender)
Representation:
Counsel:
C Taylor (Crown)
W Terracini QC (for the Offender Barry Paul Cavanagh)
N Steel (for the Offender Nathan McIvor)
R Pontello SC (for the Offender Sean David O’Keefe)
Solicitors:
Office 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.

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Details

Case: [2021] NSWSC 746
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the case of R v Cavanagh, McIvor and O'Keefe, the High Court of Australia reviewed the sentences imposed on the three co-accused who were found guilty of murder. The incident occurred at the premises of a well-known drug dealer, where the victim was fatally stabbed. The co-accused were heard fighting with the victim by a witness, and the victim's body was subsequently found dumped on the side of the road. The Crown presented two alternative theories of joint criminal enterprise during the trial: one to inflict grievous bodily harm, and another to assault the deceased with the possibility of grievous bodily harm. However, the evidence was deemed insufficient to prove that the offenders agreed to inflict grievous bodily harm on the deceased beyond reasonable doubt.

The court was required to address several legal issues, including the appropriate sentencing for the co-accused given the nature of the crime and the circumstances surrounding it. The court had to consider the objective seriousness of the offending, which was just below the mid-range, and the parity amongst the offenders. Additionally, the court needed to evaluate the importance of deterrence, as two of the offenders were on parole at the time of the offence. The court also had to assess the relevance and admissibility of victim impact statements, rejecting parts that attacked the offenders, expressed opinions about the length of sentence, or provided evidence about the medical condition of the victim.

The court concluded that the evidence was insufficient to prove that the co-accused had agreed to inflict grievous bodily harm on the deceased. The court found no special circumstances that would warrant a departure from the mid-range of sentencing for murder. Considering the importance of deterrence, particularly given that two of the offenders were on parole at the time of the offence, the court imposed sentences that reflected the seriousness of the crime. The court also considered the victim impact statements, rejecting parts that were deemed inappropriate but taking into account the rest of the statements in the sentencing process.

Orders