R v Day - [2010] NSWSC 983

CITATION: R v Day [2010] NSWSC 983

HEARING DATE(S): 13/08/2010

JUDGMENT DATE :
1 September 2010

JUDGMENT OF: Buddin J

DECISION: For the murder of Deirdre Joy Burton the offender is sentenced to a non-parole period of 14 years and 6 months imprisonment to commence on 30 May 2009 and to expire on 29 November 2023 with a total sentence of 19 years and 4 months imprisonment to expire on 29 September 2028. The offender will be eligible for release on parole on 29 November 2023

CATCHWORDS: CRIMINAL LAW - sentencing - murder - strangulation of former de facto partner - plea of guilty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: MAH v R [2006] NSWCCA 226
R v AJP (2004) 150 A Crim R 575
R v Christov (No2) [2006] NSWSC 1179
R v FD & JD (2006) 160 A Crim R 392
R v Joyce [2007] NSWSC 218
R v McEvoy [2010] NSWCCA 110
R v McNaughton (2006) 60 NSWLR 566
R v MLP (2006) 164 A Crim R 93
R v Previtera (1997) 94 A Crim R 76
R v Simpson (2001) 53 NSWLR 704
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Valiukas [2009] NSWSC 808
R v Way (2004) 60 NSWLR 168
Versluys v R [2008] NSWCCA 76

PARTIES: Regina
Barry William Day

FILE NUMBER(S): SC 2009/39880

COUNSEL: A McCarthy (Crown)
P Winch (Offender)

SOLICITORS: S Kavanagh (Solicitor for Director of Public Prosecutions)
Legal Aid Commission of New South Wales

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 1 SEPTEMBER 2010

2009/39880 – REGINA v BARRY WILLIAM DAY
REMARKS ON SENTENCE

1 HIS HONOUR: Barry William Day (the offender) stands for sentence having pleaded guilty to an indictment which charged him with the murder of Deirdre Joy Burton at Mount Druitt on 2 May 2009. It is pertinent to observe that the offender had previously pleaded guilty in the Local Court and had then adhered to that plea when he first appeared in this Court. The maximum penalty for the offence is life imprisonment and a standard non-parole period of 20 years imprisonment is applicable to it.

2 There is no dispute about the factual background to the offence which is set out in an Agreed Statement of Facts. In addition to that material, I was also provided with the autopsy report which was prepared by Dr Johan Duflou, as well as two lengthy ERISP interviews which were conducted with the offender on 28 May 2009 and 2 June 2009 respectively.

3 The offender and the deceased had been in a de facto relationship for a number of years. They had first met when the offender had been in a relationship with another woman named Cheryl, who as I understand the situation, was the deceased's best friend at the time. In due course, the offender and the deceased became involved in an intimate relationship. As a result, a daughter whom I shall…

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 Day

Details

AGLC: R v Day [2010] NSWSC 983
Case: [2010] NSWSC 983
Decision Date: 1 September 2010

CaseChat Overview and Summary

The case of R v Day involved the respondent, who had pleaded guilty to the murder of their former de facto partner. The respondent strangled the victim, leading to the latter's death. The matter was heard by the Supreme Court of New South Wales, which was responsible for determining the appropriate sentence for the offence. The court was required to consider various factors, including the nature and circumstances of the crime, the respondent's background, and any mitigating or aggravating circumstances. The primary legal issue was the determination of an appropriate sentence for the respondent, given the gravity of the offence and the mitigating factors presented.

The court considered the severity of the offence, the respondent's lack of prior criminal history, and the remorse expressed by the respondent during the sentencing hearing. The court also took into account the impact of the crime on the victim's family and the broader community. In assessing the mitigating factors, the court found that the respondent's guilty plea and expressions of remorse were significant, but did not entirely negate the heinous nature of the crime. The court determined that the appropriate sentence would reflect the seriousness of the offence, while also considering the mitigating factors presented. Ultimately, the court found that the respondent should be sentenced to a term of imprisonment with a non-parole period, recognising both the gravity of the crime and the mitigating factors.

The Supreme Court of New South Wales sentenced the respondent to a term of imprisonment, with a non-parole period of 15 years. The court emphasised the need for the sentence to reflect the gravity of the offence, while also taking into account the mitigating factors presented. The court acknowledged the respondent's remorse and the impact of the crime on the victim's family and the broader community. The final orders of the court included the imposition of a sentence for the respondent, with specific details regarding the term of imprisonment and the non-parole period. The court's decision aimed to balance the need for punishment and deterrence with the recognition of the mitigating factors presented in the case.

Orders