R v EM - [2005] NSWSC 212

CITATION:
R v EM [2005] NSWSC 212

HEARING DATE(S): 18/10/04, 20-21/10/04, 27-28/10/04, 01-05/11/04, 08-11/11/04, 15-19/11/04, 22-26/11/04

JUDGMENT DATE :

23 March 2005

JUDGMENT OF:
James J at 1

DECISION:
Sentenced to terms of imprisonment totalling 36 years with a non-parole period of 27 years.

CATCHWORDS:
CRIMINAL LAW - remarks on sentence - murder - assault with a dangerous weapon - fire a firearm with disregard for safety - robbery whilst armed with a dangerous weapon

LEGISLATION CITED:
Crimes Act
Crimes (Sentencing Procedure) Act
Evidence Act

CASES CITED:
Cheung v The Queen (2001) 209 CLR 1
Olbrich v The Queen (1999) 199 CLR 270
R v Isaacs (1997) 41 NSWLR 374
R v Jacobs and Mehajer [2004] NSWCCA 462
R v Hearne (2001) 124 A Crim R 451
R v Henry (1999) 46 NSWLR 346
R v Mills: unreported, NSWCCA 3 April 1995

PARTIES:
Regina v Sophear EM

FILE NUMBER(S):
SC 2003/24; 2002/89

COUNSEL:
J Bennett SC - Crown
Ms L Flannery - Prisoner

SOLICITORS:
Ms T Smith - Crown
Ms N Marshall LAC - Prisoner

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 23 March 2005

2002/89 Regina v Sophear EM
2003/24 Regina v Sophear EM
Remarks on Sentence

1 HIS HONOUR: On 26 November 2004, after a trial presided over by me, the jury found Sophear Em (whom I will refer to as “the prisoner”) guilty on all three counts in the indictment which had been presented on 3 November 2004 at the commencement of the trial, namely that on 7 January 2002 he had murdered Joseph Logozzo (the first count), that on the same date being armed with a dangerous weapon he had assaulted Joseph Logozzo with intent to rob him (the second count) and that on the same date he had fired a firearm with disregard for the safety of Marianne Logozzo, Mr Joseph Logozzo’s wife (the third count). It will be convenient to refer to these three offences as “the Logozzo offences”.

2 Under s 19A of the Crimes Act the maximum penalty for the crime of murder is imprisonment for the life of the offender. The second count in the indictment charged an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. The third count in the indictment charged an offence under s 93G(1)(c) of the Crimes Act for which the maximum penalty is imprisonment for ten years.

3 The trial which commenced on 3 November 2004 had been set down as a trial, not only of the three counts in the indictment to which I have referred, but of five other charges as well. However, on 3 November 2004, in the absence of the jury panel which had been summoned for the trial and before any jury was empanelled, the prisoner pleaded guilty to those five other charges, which were charges that on 17 January 2002 being armed with a dangerous weapon he had robbed…

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 EM

Details

AGLC: R v EM [2005] NSWSC 212
Case: [2005] NSWSC 212
Decision Date: 23 March 2005

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v EM unfolded as a grave matter involving the defendant, EM, who was accused of the brutal murder of an individual. The incident also included the assault with a dangerous weapon and the firing of a firearm with blatant disregard for safety during a robbery. The case necessitated a thorough examination of the legal principles surrounding these severe charges, including the assessment of the appropriate sentence given the heinous nature of the crimes.

The court was tasked with determining the legal issues pertinent to the gravity of the crimes committed. Central to the deliberation was the evaluation of the murder charge, the assault with a dangerous weapon, and the reckless use of a firearm during the robbery. The court also had to consider the circumstances under which the crimes were committed, including the defendant's conduct and the potential mitigating factors. Additionally, the court needed to balance the severity of the crimes with the principles of sentencing to ensure a just outcome.

The court meticulously analysed the evidence and arguments presented. It acknowledged the extreme brutality of the murder and the significant risk posed by the defendant's actions during the assault and robbery. The court emphasised the need to deter such heinous acts and to protect the community from potential future harm. After considering the aggravating and mitigating factors, the court determined that the defendant's actions warranted a substantial sentence. The judgment reflected the gravity of the crimes and the need for the sentence to serve both as a punishment and a deterrent.

The court ordered that EM be sentenced to a significant term of imprisonment, reflecting the severity of the crimes committed. The sentence was structured to ensure that it served as a strong deterrent against similar future offences. The court's decision underscored the importance of upholding the rule of law and ensuring that justice is served in cases of such gravity.

Orders