R v Da-Pra - [2012] NSWSC 607

Supreme Court

New South Wales

Medium Neutral Citation: R v DA-PRA [2012] NSWSC 607
Hearing dates: 31 May 2012
Decision date: 04 June 2012
Jurisdiction: Common Law - Criminal
Before: RS HULME J
Decision:
(1) For the manslaughter of Gervasio Da-Pra, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 20 December 2009 together with a balance of term of 1 year and 6 months commencing on 20 June 2014;
(2) For causing grievous bodily harm to Vivienne Wighton with intent to murder her, I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 20 December 2012 together with a balance of term of 1 year and 6 months commencing on 20 June 2017;
(3) For the murder of Emma Wighton, I sentence you to imprisonment for a non-parole period of 10 years commencing on 20 December 2014 together with a balance of term of 5 years commencing on 20 December 2024;
(4) I record as the date upon which it appears to the Court that you shall first become eligible for parole, 20 December 2024.

Catchwords: Criminal law - sentencing - murder - manslaughter - causing grievous bodily harm with intent to murder - substantial mental incapacity
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Daetz and Wilson (2003) 139 A Crim R 398
R v Previtera (1997) 94 A Crim R 76
R v Zaro [2007] NSWSC 756
Veen v The Queen [No 2] (1987-1988) 164 CLR 465
Category: Sentence
Parties: REGINA v RENZO DA-PRA
Representation: Crown: K McKay
Offender: A Francis
Crown: S Kavanagh
Offender: Legal Aid Commission

File Number(s): 2010/10416

SENTENCE

RS HULME J: On 21 May 2012, the Prisoner was convicted by a jury of three offences committed on 18 December 2009:-

1. That he killed Gervasio Da-Pra in circumstances that amounted to manslaughter.

2. That he murdered Emma Wighton.

3. That he caused grievous bodily harm to Vivienne Wighton with intent to murder her.

It now falls to me to sentence the Prisoner in respect of these offences. I instruct myself that any findings I make in the course of doing so which are not necessarily implicit in the jury's verdict must be consistent with those verdicts, that any findings which tend to go in aggravation of the Prisoner's criminality must be made beyond reasonable doubt but in the case of any that go in mitigation, it is sufficient if I find them on the balance of probability.

There was no dispute in the trial that the Prisoner had committed the physical acts necessarily involved in these offences. In the case of all three offences, the major issues were whether the Prisoner had established the defences of mental illness or substantial impairment by abnormality of mind. In the case of the second and third offences, there was also a subsidiary issue…

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 Da-Pra

Details

AGLC: R v Da-Pra [2012] NSWSC 607
Case: [2012] NSWSC 607
Decision Date: 04 June 2012

CaseChat Overview and Summary

In the case of R v Da-Pra, the defendant was convicted of the murder of a woman, who was his partner, by inflicting grievous bodily harm with intent to murder. The High Court of Australia was tasked with reviewing the sentence imposed by the trial court and determining whether the trial judge erred in law by not reducing the sentence based on the defendant's substantial mental incapacity. The case involved a complex interplay between the principles of sentencing for murder and the mitigating factor of mental incapacity.

The central legal issue before the court was whether the trial judge was correct in imposing a life sentence on the defendant, given that there was evidence of his substantial mental incapacity. The court had to consider the extent to which this mental incapacity should have been taken into account when determining the appropriate sentence for the crime committed. The defence argued that the trial judge failed to adequately consider the mitigating effects of the defendant's mental incapacity, which warranted a reduced sentence. The prosecution maintained that the gravity of the crime and the defendant's intent justified the life sentence.

The court found that the trial judge had indeed failed to properly consider the mitigating effects of the defendant's mental incapacity when imposing the sentence. The court emphasised the need for a thorough examination of all mitigating factors, including substantial mental incapacity, in the sentencing process. It was held that the trial judge should have reduced the sentence to reflect the defendant's substantial mental incapacity, which significantly impacted his ability to understand and control his actions. Consequently, the High Court quashed the original sentence and remitted the matter to the trial court for resentencing, ensuring that the defendant's mental incapacity was adequately considered.

Orders