R v Cust - [2021] NSWSC 1515

Supreme Court

New South Wales

Medium Neutral Citation: R v Cust [2021] NSWSC 1515
Hearing dates: 24 November 2021
Date of orders: 25 November 2021
Decision date: 25 November 2021
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Jamie Cust is convicted of the manslaughter of Jesus Bebita on 18 December 2018 at Scone in this State.
(2) He is sentenced to 6 years imprisonment for that offence, with a non-parole period of 4 years and 6 months. The sentence will date from 18 December 2018. The non-parole period will expire on 17 June 2023. The total term will expire on 17 December 2024.

Catchwords:
CRIME — sentence — where offender tried for murder — early guilty plea to manslaughter on the basis of extreme provocation— attempted sexual assault of offender by deceased – immediate complaint and admissions by offender — jury convicted offender of manslaughter — extreme provocation not disproved — s 23 Crimes Act 1900 (NSW) — where offender has supportive family and good prospects of rehabilitation — evidence of remorse – strong subjective case

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Gounder v R [2012] NSWCCA 87
Hill v R (1981) 3 A Crim R 397
Paterson v R [2021] NSWCCA 273
R v Alexander (1994) 78 A Crim R 141
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v Butler [2012] NSWSC 1227
R v Fuller [2020] NSWSC 1580
R v Green [1999] NSWCCA 97
R v Mitchell [2008] NSWSC 320
Williams v R [2013] NTCCA 12

Category: Sentence
Parties: Regina (Crown)
Jamie Cust (Offender)
Representation:
Counsel:
B Queenan (Crown)
P Rosser QC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Turner Freeman Lawyers (Offender)

File Number(s): 2018/17985
Publication restriction: None

Judgment

HER HONOUR: On 19 July 2021 Jamie Cust, the offender, was arraigned before a jury panel upon a charge that he did, on 17 or 18 December 2018, at Scone in this State, murder Jesus Bebita. He entered a plea of not guilty and, on 26 July 2021, was found not guilty of that charge by the jury that had been empanelled to hear his trial. As the offender had invited it to, the jury returned a verdict of guilty to the alternative charge of manslaughter, having concluded that the Crown had failed to disprove the partial defence of extreme provocation available to the offender pursuant to s 23(1) of the Crimes Act 1900 (NSW).
The offender now stands to be sentenced for the manslaughter of Mr Bebita. Manslaughter, a less serious crime than murder, is an offence which carries a maximum sentence upon conviction of 25 years imprisonment. No standard non-parole period applies.
In sentencing Mr Cust the Court must determine the facts of the offence consistent with the jury’s verdict.

The Facts of the offender’s crime

The evidence to establish precisely what occurred on or about 18 December 2018 is relatively limited.
The offender, who had…

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 Cust

Details

AGLC: R v Cust [2021] NSWSC 1515
Case: [2021] NSWSC 1515
Decision Date: 25 November 2021

CaseChat Overview and Summary

The case of R v Cust involved the offender, who was tried for the murder of the deceased, but entered an early guilty plea to manslaughter on the basis of extreme provocation. The incident arose from an attempted sexual assault of the offender by the deceased, followed by the offender's immediate complaint and admissions. The jury ultimately convicted the offender of manslaughter, finding that extreme provocation had not been disproven. The court was required to consider the application of section 23 of the Crimes Act 1900 (NSW) in determining the appropriate sentence for the offender.

The legal issues before the court included whether the offender's early guilty plea to manslaughter, and the evidence of extreme provocation, warranted a reduced sentence. The court also needed to consider the offender's background, including supportive family circumstances and good prospects of rehabilitation, as well as the evidence of remorse demonstrated by the offender. The court needed to balance these factors against the severity of the offence and the need for deterrence and denunciation.

In delivering the judgment, the court acknowledged the offender's early guilty plea and the mitigating factors in his background, including the supportive family and good prospects of rehabilitation. The court also considered the evidence of remorse and the fact that extreme provocation had not been disproven. However, the court also recognised the gravity of the offence and the need for deterrence and denunciation. Ultimately, the court determined that a sentence of imprisonment was appropriate, but with consideration given to the mitigating factors. The court ordered the offender to serve a sentence of imprisonment with a non-parole period, reflecting the court's assessment of the appropriate balance between punishment, deterrence, and rehabilitation.

Orders