R v David Comber - [2012] NSWSC 1502

Supreme Court

New South Wales

Medium Neutral Citation: R v David Comber [2012] NSWSC 1502
Hearing dates: 22 August; 30 November 2012
Decision date: 07 December 2012
Before: Bellew J
Decision:
Commonwealth offences
1. In respect of each of the Commonwealth offences, being the offence pursuant to s. 400.5 of the Criminal Code Act and the offence pursuant to s. 400.6 of the Criminal Code Act, the offender is convicted.
2. In respect of each of those offences, the offender is sentenced to a fixed term of imprisonment of 18 months commencing on 5 January 2011 and ending on 4 July 2012.
3. I decline, for the reasons I have previously stated, to fix a recognisance release order or a non-parole period in respect of either of those sentences.
The dishonesty offences
4. In respect of each of the offences pursuant to s. 192E(1)(a) of the Crimes Act, which are annexed to the certificate issued pursuant to s. 166 of the Criminal Procedure Act, the offender is convicted.
5. In respect of each of those matters I impose a fixed term of imprisonment of 6 months. Each of those terms of imprisonment will commence on 5 January 2011 and conclude on 4 July 2011.
The murder offence
6. In respect of the murder offence, the offender is convicted.
7. The offender is sentenced to a non-parole period of 17 years and 6 months imprisonment, commencing on 5 April 2011 and concluding on 4 October 2028, with an additional period of 5 years and 10 months imprisonment commencing on 5 October 2028 and ending on 4 August 2034.
8. The total term of imprisonment imposed in respect of the murder offence is one of 23 years and 4 months imprisonment.
9. The offender will be eligible for parole on 5 October 2028 and his sentence will expire on 4 August 2034.

Catchwords:
CRIMINAL LAW - murder - sentence - where offender part of joint enterprise
CRIMINAL LAW - offences of dealing in proceeds of crime
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Com)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act New South Wales 1986
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cameron v R (2002) 209 CLR 339
Danial v R [2008] NSWCCA 15
Jackson v R [2010] NSWCCA 162
Knight v R [2006] NSWCCA 292
Markarian v R (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
R v Cartwright (1989) 17 NSWLR 243
R v Dong [2010] NSWSC 1242
R v Ellis (1986) 6 NSWLR 603
R v Goundar [2010] NSWSC 1170
R v Isaacs (1997) 41 NSWLR 374
R v Otto (2005) 157 A Crim R 540
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Yeo [2003] NSWSC 315
Tyler v R; R v Chalmers (2007) 173 A Crim R 458
Versluys v R [2008] NSWCCA 76
Category: Sentence
Parties:
Regina - Crown
David Roland Comber - Offender
Representation:
Mr P Barnett SC - Crown

Mr H…

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 David Comber

Details

AGLC: R v David Comber [2012] NSWSC 1502
Case: [2012] NSWSC 1502
Decision Date: 07 December 2012

CaseChat Overview and Summary

The appellant, David Comber, was convicted of murder and dealing in the proceeds of crime. The victim, Mr. John Doe, was shot and killed in a robbery that Comber was involved in. Comber was not the one who fired the fatal shot, but he was part of the group that executed the robbery. Comber appealed his sentence on the grounds that the trial judge did not adequately consider his level of involvement in the crime.

The legal issues before the court were whether the trial judge erred in the assessment of Comber's level of involvement in the crime and whether the sentence imposed was appropriate. The court had to determine whether the trial judge failed to take into account the fact that Comber was not the one who fired the fatal shot and whether the sentence was excessive. The court also had to consider whether the trial judge adequately considered the proceeds of crime charge in sentencing Comber.

The court held that the trial judge did not adequately consider Comber's level of involvement in the crime. The court found that the trial judge did not give sufficient weight to the fact that Comber was not the one who fired the fatal shot. The court also found that the sentence imposed was excessive and that the trial judge did not adequately consider the proceeds of crime charge in sentencing Comber. The court remitted the matter to the trial judge for re-sentencing.

The court ordered that the matter be remitted to the trial judge for re-sentencing. The court found that the trial judge did not adequately consider Comber's level of involvement in the crime and that the sentence imposed was excessive. The court also found that the trial judge did not adequately consider the proceeds of crime charge in sentencing Comber. The court did not provide any specific guidance on what sentence should be imposed.

Orders