R v D'Ambrosio - [2014] NSWSC 1685

Supreme Court

New South Wales

Medium Neutral Citation: R v D'Ambrosio [2014] NSWSC 1685
Hearing dates: 21 November 2014
Decision date: 28 November 2014
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
For the manslaughter of Nikola Srbin, sentenced to a term of imprisonment of 9 years and 10 months commencing on 9 October 2013 with a non-parole period of 7 years and 5 months.
The earliest date upon which the offender is eligible for release on parole is 9 March 2021.

Catchwords: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - offender who was threatened with violence due to his non-payment of a drug debt arranged for a group of men to come to his residence at the time appointed for repayment to protect him - offender orchestrated conflict that led to death - planning and deliberation involved - response inimical to civilised society and the rule of law - limited remorse - offence committed while on parole - no special circumstances
Legislation Cited: Crimes Act 1900 (NSW), s 24
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 88 ALJR 372
D'Ambrosio v R [2010] NSWCCA 120
Hili v The Queen; Jones v The Queen [2010] HCA 45
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v KP & PR [2008] NSWSC 970
R v Lavender [2005] HCA 37; 222 CLR 67
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090
RCW v R (No. 2) [2014] NSWCCA 190
Category: Sentence
Parties: Regina
James Pasqual D'Ambrosio
Representation: Counsel:
T Bailey (Crown)
C Davenport SC (Offender)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
Astoria Lawyers (Offender)

File Number(s): 2013/303930
Publication restriction: Nil

REMARKS ON SENTENCE

Introduction

On 21 November 2014 the offender, James D'Ambrosio, was arraigned on an indictment dated 21 November 2014 charging him with unlawfully slaying Nikola Srbin at Redfern on 5 June 2013. He pleaded guilty to the offence. The basis for his liability is that he was party to a joint criminal enterprise which involved an unlawful and dangerous act which caused the death of the deceased.

Prior to the presenting of the indictment referred to above, the trial by jury of the offender for the charge of murder had been set down to commence on 22 September 2014. He was arraigned on indictment on that day and pleaded guilty to manslaughter but, because of an error in the date of the offence on the indictment, I granted leave on 21 November 2014, which was not opposed, for the indictment to be amended to correct the date. The offender was re-arraigned as set out above.

The Facts

The facts on the basis of which the offender is to be sentenced are derived substantially from the statement of agreed facts, which was signed by the offender and the Crown Prosecutor on 22 September 2014 (the Agreed Facts), from which the…

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 D'Ambrosio

Details

AGLC: R v D'Ambrosio [2014] NSWSC 1685
Case: [2014] NSWSC 1685
Decision Date: 28 November 2014

CaseChat Overview and Summary

The case of R v D'Ambrosio arose before the court following the death of an individual during an altercation at the offender's residence. The deceased had been involved in a dispute with the offender, D'Ambrosio, over a drug debt. D'Ambrosio, who was on parole at the time, arranged for a group of men to come to his residence to protect him from potential violence from the deceased and others. This arrangement ultimately resulted in a confrontation that led to the death of the deceased. The offender was subsequently charged with manslaughter.

The central legal issue before the court was whether D'Ambrosio's actions constituted an unlawful and dangerous act manslaughter. This required an examination of the planning and deliberation involved in the orchestration of the confrontation, the proportionality of the response, and the circumstances surrounding the offence. The court also considered the offender's level of remorse and the fact that the offence was committed while he was on parole. The court found that D'Ambrosio's actions demonstrated a high degree of planning and deliberation, which were inimical to civilised society and the rule of law. While D'Ambrosio had some limited remorse, the court found that this was insufficient given the gravity of the offence. The court concluded that there were no special circumstances that would warrant a departure from the appropriate sentence for the offence.

The court determined that D'Ambrosio's actions warranted a sentence that reflected the seriousness of the offence and the need to deter similar conduct in the future. The court considered the offender's prior criminal history and the fact that the offence was committed while he was on parole. Ultimately, the court sentenced D'Ambrosio to a term of imprisonment, reflecting the gravity of the offence and the need to uphold the rule of law. The court emphasised the importance of accountability and the need to protect the community from dangerous offenders.

Orders