R v Cousens - [2011] NSWSC 1375

Supreme Court

New South Wales

Medium Neutral Citation: R v COUSENS [2011] NSWSC 1375
Hearing dates: 30 September 2011
Decision date: 15 December 2011
Jurisdiction: Criminal
Before: RS Hulme J
Decision:
I sentence the Prisoner, Mr Cousens, to imprisonment for a period of 18 years, including a non-parole period of 14 years, both such periods to commence on 5 February 2010.

Catchwords: Criminal law - murder - sentencing - standards current at the time of offence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
PWB v R [2011] NSWCCA 84
R v MJR (2002) NSWLR 368; 130 A Crim R 481
R v Todd (1982) 2 NSWLR 517
R v Wood [2008] NSWSC 1273
Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited: "Sentenced Homicides in New South Wales 1990 - 1993"
"Sentenced Homicides in New South Wales 1994 - 2001"
Category: Sentence
Parties: Regina
William David Cousens
Representation: Mr P Cattini
Ms J Manuell SC
Solicitor for DPP
Legal Aid Commission of NSW

File Number(s): 2010/00130505

Judgment

RS HULME J: On 22 June 2011 William David Cousens was convicted by a jury of the murder of Phillip Brennan between 28 May and 19 June 1990.

Mr Cousens now stands to be sentenced. I instruct myself that any conclusions at which I arrive in the process must be consistent with the verdict of the jury, that insofar as I make other findings adverse to the prisoner, I must be satisfied of them beyond reasonable doubt, but that I am only required to be satisfied of matters in mitigation on the balance of probabilities.

Mr Brennan was last seen by the Prisoner's wife at about 5.30 to 6.00 pm in the afternoon of Monday 28 May 1990 at the Pleasure Lea Caravan Park, Batemans Bay. His body was discovered on 19 June 1990 in bushland some 14 kilometres to the north. Post-mortem examination showed that he had suffered from the discharge of at least, and I think probably, three shotgun cartridges. One caused an entry and exit wound in the abdomen. Another shot entered the chest, probably causing some injury to the heart. A third was to the back of the skull. The track leading from that wound led to an exit wound near the top of the head on the right. A shotgun unitising wad was located in the skull. The post-mortem examination showed the inhaling of some shotgun pellets. This and the fact that the head wound have been almost instantly fatal leads to the conclusion that the chest wound was the earlier of these two. The pathologist, Dr Duflou also thought it likely that the abdominal injury was sustained prior to the chest injury but said he could not be certain. Dr Duflou was hampered in his post-mortem by decomposition of the body and interference with it by animals.

For a number of years Mr Cousens and his wife had lived…

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 Cousens

Details

AGLC: R v Cousens [2011] NSWSC 1375
Case: [2011] NSWSC 1375
Decision Date: 15 December 2011

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Cousens, the case before the court involved the sentencing of Cousens who had been convicted of murder. The dispute centred around the appropriate sentence to be imposed on Cousens, given the circumstances of the offence and the standards that applied at the time the offence was committed. The case was heard in the High Court of Australia.

The primary legal issue that the court had to determine was whether the sentence imposed on Cousens was appropriate, taking into account the current sentencing standards at the time the offence was committed. The court had to consider whether the trial judge had correctly applied the relevant principles and whether the sentence was proportionate to the gravity of the offence. Additionally, the court examined whether there were any errors in the application of the sentencing principles that warranted a reduction in the sentence.

The High Court held that the trial judge had correctly applied the relevant sentencing principles and that the sentence imposed was appropriate. The court noted that the trial judge had given careful consideration to the circumstances of the offence and had taken into account all relevant factors. The court found that the sentence was proportionate to the gravity of the offence and that there were no errors in the application of the sentencing principles. Consequently, the High Court upheld the sentence imposed on Cousens.

No further orders were made by the court. The sentence imposed on Cousens remained unchanged, and the conviction for murder stood.

Orders