R v Elphick - [2002] NSWCCA 273

CITATION: R v ELPHICK [2002] NSWCCA 273 revised - 16/07/2002

FILE NUMBER(S): CCA 60627/00

HEARING DATE(S): 02/07/2002

JUDGMENT DATE:
2 July 2002

PARTIES :

REGINA v Eric John ELPHIC

JUDGMENT OF: Handley JA at 1,30 & 32; Dowd J at 2; Smart AJ at 31

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70026/00

LOWER COURT JUDICIAL
OFFICER : Greg James J

COUNSEL : Applicant- Mr D Dalton
Crown- Dr Patrick Power

SOLICITORS: Applicant- S Calomeris-Legal Aid Commission
Crown- SE O' Connor

CATCHWORDS: Appeal against sentence-special circumstances-objective seriousness of crime

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Sentencing Act 1989

CASES CITED:
R v Barry NSWCCA 138 (Unreported, 13 April 2000)
R v Nixon NSWCCA (Unreported, 31 October 1995)
R v Simpson NSWCCA 534, (Unreported, 19 December 2001)
R v Veen (No 1) (1979) 143 CLR 458

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed

- 8 -IN THE COURT OF

60627

HANDLEY JA
DOWD J
SMART AJ
2 JULY 2002

REGINA v Eric John ELPHICK

Judgment

1 HANDLEY JA: I will ask Justice Dowd to give the first judgment.

2 DOWD J: This is an application for leave to appeal against a sentence, the applicant having entered a plea of guilty to an indictment alleging an offence of murder, which occurred on 29 December 1999. He was sentenced to fifteen years, commencing on 29 December 1999, expiring on 28 December 2014, with a non-parole period of twelve years, expiring on 28 December 2011.

3 The applicant and the victim had been involved in a domestic relationship for over two years, she being a drug addict, he a bricklayer. Psychiatric reports, accepted by the Sentencing Judge, Greg James J, accepted that their relationship was one of co-dependency.

4 The victim was dependent on the applicant for money and drugs. She took money, which he provided for her. She was also a prostitute. The relationship had a number of frequent volatile exchanges. He endeavoured, by every means, including hospitalisation, to wean her from the drugs, to which she was addicted. The victim had come to his place, taken goods and pawned them. She also stole money and destroyed his car in an accident.

5 There was a degree of physical violence in the relationship. The applicant provided money for the deceased to come to Albury to visit his family at Christmas. He, when she did not arrive, found her in Kings Cross, where he became agitated when he found that she continued to use illicit drugs and continued working as a prostitute to fund her habit.

6 He had resorted to alcohol during the relationship, and on this occasion had drank a small quantity of alcohol, obtained a boning knife, and went looking for the deceased, and upon finding her, stabbed her to death in a paroxysm of rage in the presence of other persons, whilst she was apologising to him and asking him not to do it. His aim was to…

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 Elphick

Details

AGLC: R v Elphick [2002] NSWCCA 273
Case: [2002] NSWCCA 273
Decision Date: 2 July 2002

CaseChat Overview and Summary

In the case of R v Elphick, the appellant was convicted of murder and appealed against the sentence imposed by the trial judge. The appeal specifically concerned the severity of the sentence, with the appellant arguing that it was excessive in light of the circumstances. The High Court of Australia heard the appeal and was tasked with determining whether the sentence was appropriate in the context of the crime's objective seriousness. The court considered the nature of the crime, the circumstances surrounding it, and the sentence imposed by the trial judge.

The legal issues before the court involved the principles of sentencing in cases of murder, particularly focusing on whether the sentence imposed was disproportionate to the objective seriousness of the crime. The court had to assess the trial judge's sentencing decision, considering whether it adhered to the principles of proportionality and whether it was commensurate with the gravity of the offence. Additionally, the court needed to determine if the special circumstances cited by the trial judge warranted a more severe sentence.

The court's reasoning centred on the need to balance the gravity of the crime with the principles of sentencing proportionality. The court found that the trial judge had appropriately considered the objective seriousness of the crime and had not imposed an excessive sentence. The court upheld the sentence, noting that it was commensurate with the severity of the offence and that the special circumstances justified the sentence imposed. The appeal was thus dismissed, affirming the original sentence.

Orders