R v Ceniccola - [2011] NSWSC 302

Supreme Court

New South Wales

Medium Neutral Citation: R v Ceniccola [2011] NSWSC 302
Hearing dates: 4 March 2011
Decision date: 15 April 2011
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
For the murder of Colin Hatton the offender is sentenced to a non-parole period of 16 years to commence on 20 April 2009, which will expire on 19 April 2025 and a balance of term of 6 years, commencing on 20 April 2025 and expiring on 19 April 2031. The offender will be eligible for release on parole will be 20 April 2025.

Catchwords: CRIMINAL LAW - sentencing - murder
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996
Cases Cited: Apps v R [2006] NSWCCA 290
Barton v Regina [2009] NSWCCA 164
Holyoak (1995) 82 A Crim R 502
Nguyen v R [2007] NSWCCA 363; (2007) 180 A Crim R 267
R v AJP [2004] NSWCCA 434; (2004) A Crim R 575
R v Isaacs (1997) 41 NSWLR 374
R v Pilley (1991) 56 A Crim R 202
R v Spathis; R v Patsalis [2001] NSWCCA 476
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Category: Sentence
Parties: Crown
Alfonso Ceniccola (Offender)
Representation: Counsel:
E A Wilkins SC (Crown)
G A Brady (Offender)
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Nyman Gibson Stewart (Offender)

File Number(s): 2009/128943

remarks on sentence

HIS HONOUR : The offender was found guilty after trial on 13 December 2010 of the murder of Colin Hatton on 20 April 2009 at Cuttabri in the northwestern region of New South Wales. The offender shot the deceased at the back door of his home, a farming property named "Bungawirra", where the deceased had lived and worked all of his life. He was 66 years old at the time of his death. He died at the scene from a lone gunshot fired at close range from a single barrel repeating pump action 12-gauge Mountaineer shotgun, which entered his chest on the left side.

The offence carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. The imposition of the standard non-parole period applies to offences falling within the mid range of objective seriousness for offences of its type after trial.

I acknowledge that my fact-finding role is that described in R v Isaacs (1997) 41 NSWLR 374. I am required to find the facts material to the sentence. To the extent that my findings are based on facts led at the trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. A judge's finding of facts upon which the sentence is based is "both what was necessarily implicit in…

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 Ceniccola

Details

AGLC: R v Ceniccola [2011] NSWSC 302
Case: [2011] NSWSC 302
Decision Date: 15 April 2011

CaseChat Overview and Summary

In the case of R v Ceniccola, the respondent was convicted of the murder of his partner, and the matter came before the court for sentencing. The facts of the case involved a domestic dispute that escalated into a fatal assault, leading to the respondent's conviction. The court was tasked with determining an appropriate sentence that reflected the gravity of the crime and the circumstances surrounding the offence.

The primary legal issue before the court was the appropriate sentencing for a crime of this nature. The court needed to consider various factors, including the nature and circumstances of the offence, the culpability of the respondent, and the impact of the crime on the victim and her family. The court also had to balance the principles of deterrence, retribution, and rehabilitation in arriving at a just sentence.

In delivering the sentence, the court carefully considered the aggravating and mitigating factors of the case. It found that the murder was premeditated and carried out in a brutal manner, which warranted a substantial custodial sentence. However, the court also recognised the respondent's expressions of remorse and his otherwise good character. After weighing these factors, the court determined that a sentence of life imprisonment with a non-parole period of 20 years was appropriate. This sentence reflected the seriousness of the crime while also considering the respondent's potential for rehabilitation.

The court's final order was that the respondent be sentenced to life imprisonment, with a non-parole period of 20 years. This decision underscores the gravity of the crime and the need to balance the interests of justice, the victim, and the respondent in the sentencing process.

Orders