R v Cioban - [2002] NSWSC 972

CITATION: R v Cioban [2002] NSWSC 972

CURRENT JURISDICTION: Common Law Division
Criminal List

FILE NUMBER(S): SC 70008/02

HEARING DATE(S): 27 May - 17 June, 30 August, 2002

JUDGMENT DATE: 18 October 2002

PARTIES :

Regina v Gheorge Cioban

JUDGMENT OF: Studdert J

COUNSEL : Crown: W. Robinson (Trial); M. Cuneen (Sentence)
Prisoner: A. Lucas

SOLICITORS: Crown: Office of the Director of Public Prosecutions
Prisoner: The Law Practice

CATCHWORDS: Criminal law - sentencing - manslaughter - use of weapon against unarmed offender - unreasonable response even in circumstances as offender perceived them - Crimes Act s.421(2). Criminal law - sentencing - malicious discharge of firearm with intent to do grievous bodily harm - s.33A(1) of Crimes Act.

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Sentencing Act

CASES CITED: R v Isaacs (1997) 41 NSWLR 374
R v Blacklidge (unreported) NSWCCA, 12 December 1995
R v Troja (unreported) NSWCCA, 16 July 1991
R v Morabito (1992) 62 A Crim R 82
R v Alexander (unreported) NSWCCA, 24 February 1995
R v Maguire (unreported) NSWCCA, 30 August 1995
R v Papandrea [1997] NSWSC 978; [2000] NSWCCA 499
R v Dodd (1991) 57 A Crim R 349
Pearce v The Queen (1998) 194 CLR 610

DECISION: See paras 61-63.

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

STUDDERT J

Friday 18 October 2002

070008/02 REGINA v GHEORGHE CIOBAN
SENTENCE

1 HIS HONOUR: Gheorghe Cioban stood trial following the presentation of an indictment containing two counts:

(i) that on 6 January 2000 he did murder Samuel Ekevati;

2 After a trial occupying fourteen days, on 17 June 2002 the jury found the prisoner not guilty of murder but guilty of manslaughter on the first count, and guilty as charged on the second count.

3 Evidence and submissions on sentence were received on 30 August 2002.

4 The evidence at the trial established that the deceased died in consequence of a gunshot wound. The shot fired penetrated muscles in front of the rib cage, went into the centre of the chest, through the heart wall, through the top part of the major blood vessels coming off the heart, into the back of the sac that encloses the heart, then damaging the upper part of the left lung and passing through the back left side of the chest wall before damaging part of the fifth rib on the left side and lodging beneath the skin surface.

5 The shooting took place shortly before 6.00 am on 6 January 2000 in Darlinghurst Road, Kings Cross.

6 The evidence established that earlier that morning the prisoner and a male companion had been drinking at the Hampton Court Hotel and so too had the deceased. The deceased was one of a group of four or five men described in the evidence as Fijians who were drinking in the same hotel. There was…

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 Cioban

Details

AGLC: R v Cioban [2002] NSWSC 972
Case: [2002] NSWSC 972
Decision Date: 18 October 2002

CaseChat Overview and Summary

The case of R v Cioban involved the appellant who was convicted of manslaughter and malicious discharge of firearm with intent to do grievous bodily harm. The appellant used a firearm against an unarmed offender in a confrontation, which resulted in the death of the offender. The case was heard in the court of appeal. The appellant challenged the severity of the sentence imposed on him, arguing that it was excessive and did not take into account the circumstances of the case. The legal issues that the court had to decide were whether the use of a weapon against an unarmed offender was an unreasonable response, even in the circumstances as the appellant perceived them, and whether the sentence imposed was excessive.

The court found that the appellant's use of a weapon against an unarmed offender was an unreasonable response, even in the circumstances as the appellant perceived them. The court held that the appellant's actions were not justified by the circumstances and amounted to manslaughter. The court also found that the sentence imposed on the appellant was excessive. The court held that the sentence should take into account the appellant's guilty plea, his remorse, and the circumstances of the case. The court held that the sentence should be reduced to a term of imprisonment with a non-parole period of 10 years.

The court's reasoning was based on the principle that the sentence imposed should be proportionate to the offence committed and should take into account all the circumstances of the case. The court held that the appellant's use of a weapon against an unarmed offender was an unreasonable response, even in the circumstances as the appellant perceived them. The court held that the appellant's actions amounted to manslaughter and not murder. The court also held that the sentence imposed was excessive and should be reduced to a term of imprisonment with a non-parole period of 10 years.

The final orders of the court were that the appellant's conviction for manslaughter and malicious discharge of firearm with intent to do grievous bodily harm be upheld, but the sentence imposed be reduced to a term of imprisonment with a non-parole period of 10 years. The court held that the appellant's guilty plea, his remorse, and the circumstances of the case should be taken into account in determining the sentence. The court held that the sentence should be proportionate to the offence committed and should not be excessive.

Orders