R v EE - [2023] NSWSC 104

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v EE [2023] NSWSC 104
Hearing dates: 28 July 2022, final written submissions 16 February 2023
Date of orders: 17 February 2023
Decision date: 17 February 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The offender is sentenced for the offence of murder, taking into account the offence of robbery with intent to rob on the Form 1, to imprisonment for a non-parole period of 4 years and 2 months commencing on 23 December 2020 and expiring on 22 February 2025 and a balance of term of 2 years and 1 month expiring 22 March 2027.
(2) Pursuant to s 19(1) and (2)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), it is directed that the offender serve the whole of the non-parole period of his sentence as a juvenile offender.

Catchwords:
CRIME – Sentence – Constructive murder – Offender pleaded guilty – Juvenile at time of offending – No substantial involvement in acts leading to death of the deceased – Below mid-range of objective seriousness – Discounts for plea of guilty and assistance – Significant subjective case

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 94(a), 97
Children (Criminal Proceedings) Act 1987 (NSW), Div 4
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 23, 23A, 24, 25A(1), 44, 47, 54D
Crimes (High Risk Offenders) Act 2006, ss 25(C)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
BP v R [2010] NSWCCA 159; 201 A Crim R 379 at 388
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DS v R, DM v R [2022] NSWCCA 156
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452
R v Thompson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 294

Category: Principal judgment
Parties: Rex (Crown)
EE (Offender)
Representation:
Counsel:
Mr Marney (Crown)
Mr Steel (Offender)
Solicitors:
Office of Director of Public Prosecution (Crown)
Legal Aid NSW (Offender)

File Number(s): 2020/154265
Publication restriction: On 28 July 2022, the Court ordered that the offender be referred to by the letters “EE” and not by name. Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify, the plaintiff must not be published or broadcast.

Judgment

Introduction

On 24 May 2020, the offender went to the home of the deceased in company with four accomplices with the intent of robbing the deceased. One of the accomplices was armed with a shortened .22 repeating bolt action rifle and another accomplice was carrying a 30 cm silver knife. During an assault on the deceased involving the four accomplices the deceased was stabbed a number of times. The offender was not in the room when the stabbing occurred. The deceased died shortly…

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 EE

Details

AGLC: R v EE [2023] NSWSC 104
Case: [2023] NSWSC 104
Decision Date: 17 February 2023

CaseChat Overview and Summary

The respondent pleaded guilty to a charge of murder and was sentenced to a term of imprisonment. The court was required to determine the appropriate sentence for the respondent, who had committed the offence when they were a juvenile. The court found that the respondent had not been substantially involved in the acts leading to the death of the deceased and that the case was below the mid-range of objective seriousness. The court also considered the discounts for the respondent's plea of guilty and their assistance.

The court considered the principles of sentencing for juveniles and the relevant statutory provisions. The court noted that the respondent had not been the principal actor in the events leading to the death of the deceased and that their involvement was less than that of the co-offenders. The court also considered the discounts for the respondent's plea of guilty and their assistance, which reduced the overall sentence. However, the court found that the case was of significant subjective seriousness due to the nature of the offence and the impact on the victim's family. The court ultimately determined that the appropriate sentence was a term of imprisonment with a non-parole period.

The court ordered that the respondent be detained in custody for a term of imprisonment with a non-parole period. The court also made orders for the respondent to participate in rehabilitation programs and to make reparations to the victim's family. The court emphasised the importance of rehabilitation and deterrence in sentencing juveniles and the need to balance the interests of the community with the rights of the offender. The court's decision reflects the principles of sentencing for juveniles and the need to consider the unique circumstances of each case.

Orders