R v Clay, Lonsdale and JM - [2006] NSWSC 1220

CITATION: R v Clay, Lonsdale and JM [2006] NSWSC 1220

HEARING DATE(S): 21/08/2006, 23/08/2006, 28/09/2006. 20/10/2006, 27/10/2006, 10/11/2006

JUDGMENT DATE :
17 November 2006

JUDGMENT OF: Buddin J

DECISION: Manslaughter - offender Clay sentenced to a non-parole period of 3 years to date from 5 January 2005 and to expire on 4 January 2008 with the total sentence being one of 5 years to date from 5 January 2005 and to expire on 4 January 2010. The offender is eligible for release on parole on 4 January 2008. Manslaughter - offender Lonsdale sentenced to a non-parole period of 4 years to date from 21 January 2005 and to expire on 20 January 2009 with the total sentence being one of 6 years and 8 months to date from 21 January 2005 and to expire on 20 September 2011. The offender is eligible for release on parole on 20 January 2009. Affray - offender JM is convicted. Pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act, order that he be released on condition that he enter into a good behaviour bond for a period of nine months and that he appear before the Court if called on to do so at any time during the term of the bond.

CATCHWORDS: Sentence - two offenders pleaded guilty to manslaughter and one to affray - unlawful and dangerous act - offenders acting in concert - strong subjective features - parity

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

CASES CITED: MAH v R [2006] NSWCCA 226
Postiglione v The Queen (1997) 189 CLR 295
R v Adamson (2002) 132 A Crim R 511
R v AEM (Snr) & Ors [2002] NSWCCA 58
R v Andrews (2006) 160 A Crim R 505
R v Benitez (2006) 160 A Crim R 166
R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Cameron (2002) 209 CLR 339
R v Coleman (1990) 47 A Crim R 306 at 327
R v Dib [2003] NSWCCA 117
R v FD & JD (2006) 160 A Crim R 392
R v Hamshere [2005] NSWSC 1319
R v Harmouche (2005) 158 A Crim R 357
R v Hearne (2001) 124 A Crim R 451
R v Hemsley [2004] NSWCCA 228
R v Hill (1981) 3 A Crim R 397
R v Imnetu [2006] NSWCCA 203
R v MA (2004) 145 A Crim R 434
R v McDonald (unreported, NSWCCA, 12 December 1995)
R v MD, BM, NA and JT (2005) 156 A Crim R 372
R v Previtera (1997) 94 A Crim R 76
R v Simpson (2001) 53 NSWLR 704
R v Tangye (1997) 92 A Crim R 545
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Trevenna (2004) 149 A Crim R 505
R v Troja (unreported, NSWCCA, 16 July 1991)
R v Voss [2003] NSWCCA 182
R v WKR (1993) 32 NSWLR 447
R v Yildiz (2006) 160 A Crim R 218

PARTIES: Regina
Harley Mason Clay
Anthony Lonsdale

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: [2006] NSWSC 1220
Decision Date: 17 November 2006

CaseChat Overview and Summary

In the case of R v Clay, Lonsdale and JM, the defendants were before the court following charges related to an incident in which two of the defendants pleaded guilty to manslaughter, and the third pleaded guilty to affray. The case centred on whether the sentences imposed on the three offenders were appropriate, particularly given the involvement of all three in an unlawful and dangerous act, and the need to ensure parity in sentencing. The defendants were all acting in concert during the incident, which had strong subjective features, including the use of a dangerous weapon.

The legal issues before the court included the appropriate sentencing of offenders who had acted in concert, the consideration of subjective features of the crime, and the necessity of achieving parity in sentencing. The court had to weigh the individual culpability of each offender against the collective nature of the crime. It was crucial to ensure that the sentences reflected the gravity of the act and the respective roles of the defendants, while also maintaining a consistent approach to sentencing.

The court determined that the sentences were appropriate, taking into account the collective culpability of the defendants and the strong subjective features of the crime. It was held that the offenders, having acted in concert, should be treated as a single unit for sentencing purposes. The court also considered the need to ensure parity in sentencing, recognising the importance of a consistent approach to similar crimes involving multiple offenders. The subjective features, including the use of a dangerous weapon, were deemed significant in the sentencing process, ensuring that the sentences reflected the seriousness of the crime. The court concluded that the sentences imposed were just and appropriate given the circumstances.

The court ordered that the sentences be upheld as appropriate, reflecting the collective culpability and the need for parity in sentencing. The defendants' pleas of guilty were accepted, and the court emphasised the importance of considering all relevant factors in determining the appropriate punishment for such serious offences.

Orders