R v Elsworth - [2000] NSWSC 582

CITATION: Regina v Michael James ELSWORTH [2000] NSWSC 582

FILE NUMBER(S): SC 70062/96

HEARING DATE(S): 5 April 2000 to 10 May 2000

JUDGMENT DATE: 30 June 2000

PARTIES :

Regina
Michael James ELSWORTH

JUDGMENT OF: Sully J

COUNSEL : D. Arnott/J. Downing - Crown
J. Hart - Accused

SOLICITORS: S. E. O'Connor - Crown
Christopher Murphy - Accused

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

CASES CITED: The Queen v De Simoni (1981) 147 CLR 383
Reg v Brown & ors. (1994) 1 AC 212
Lowe v The Queen (1984) 154 CLR 606
Wilson v The Queen (1992) 174 CLR 313

DECISION: (1) Conspiracy maliciously to inflict grievous bodily harm with intent so to do; (2) Accessory after the fact to murder; In each case: 9 years imprisonment, reduced for pre-sentence custody; non parole period 6 years 9 months similarly reduced. Sentences concurrent.

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

30 June 2000

70062/96 - Regina v Michael James Elsworth

ON SENTENCE

1 HIS HONOUR: On 5 April 2000 Michael James Elsworth (“the prisoner”) was presented for trial in this Court upon an indictment charging that on or about 20 October 1994 at Mount Pritchard he had murdered one Gary James Bennett (“the victim”). The prisoner pleaded not guilty and he was put accordingly upon trial by jury. 2 That trial proceeded until 10 May 2000, the twenty-second day of the trial. On that day the jury was discharged without verdict, and the prisoner was thereupon re-indicted. The new indictment contained two counts charging: first, that the prisoner had conspired, between 1 September 1994 and 20 October 1994, with one Fasel Jaber, one Gordon Pagett, and one Wayne Carrick, maliciously to inflict grievous bodily harm on the victim with intent to do grievous bodily harm to him; and, secondly, that the prisoner, knowing that some person or persons unknown to the police had murdered the victim between 19 October 1994 and 20 October 1994, had on 20 October 1994 assisted Gordon Pagett to dispose of the victim’s body. The prisoner pleaded guilty to each of those two charges. He was formally convicted, and was remanded in custody to 12 May 2000. 3 On 12 May 2000 some documentary evidence relevant to sentence, and submissions on sentence, were received; and the prisoner was further remanded to 16 June 2000 for the finalisation of the proceedings on sentence, and in order that a pre-sentence psychiatric report about the prisoner might be obtained. It was indicated that the Court would formally pass sentence today. 4 On 16 June the Court received a psychiatric report from Dr. John Roberts, and heard further submissions on sentence. Dr. Roberts’ report spoke, among other things, about the desirability of having the plaintiff tested psychometrically; and the proceedings on sentence were further adjourned to 23 June in order that such testing might be carried out. 5 On 23 June the Court was informed that Dr. John Taylor, who had been…

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 Elsworth

Details

AGLC: R v Elsworth [2000] NSWSC 582
Case: [2000] NSWSC 582
Decision Date: 30 June 2000

CaseChat Overview and Summary

In Regina v Michael James Elsworth, the defendant was convicted of conspiracy to inflict grievous bodily harm with intent, and being an accessory after the fact to murder. The case involved a premeditated attack on Gary James Bennett, who was abducted, beaten, and ultimately killed. Elsworth had orchestrated the attack with the intent to teach Bennett a lesson for his perceived arrogance and abrasiveness towards Elsworth and others at their workplace. Elsworth's involvement extended to assisting in disposing of Bennett's body. The court had to determine an appropriate sentence that reflected the gravity of the crimes while considering mitigating factors such as Elsworth's guilty plea, expressions of remorse, and his limited intellectual capabilities as evidenced by psychiatric assessments.

The court emphasized the severe objective gravity of Elsworth's crimes, noting the brutal nature of the assault and the deliberate concealment of the crime. It highlighted the need for public accountability for such heinous acts and the serious breach of public order involved in Elsworth's actions. However, the court also considered subjective factors such as Elsworth's lack of prior significant criminal history, his limited education, and the remorse he expressed towards the end of his testimony. Additionally, the court took into account the considerable period Elsworth had already spent in pre-sentence custody.

Balancing these considerations, the court decided on a sentence of 9 years imprisonment for both offences, with a non-parole period of 6 years and 9 months, reduced to reflect the pre-sentence custody already served. The sentences were to run concurrently, ensuring that Elsworth would not be punished for more serious offences than those to which he pleaded guilty. The court's decision underscored the importance of aligning moral culpability with legal responsibility while also considering the potential for rehabilitation.

Orders