R v Forbes - [2004] NSWSC 421

CITATION: R v FORBES [2004] NSWSC 421

HEARING DATE(S): 5 December 2003
7 May 2004

JUDGMENT DATE:
7 May 2004

JUDGMENT OF: Hulme J at 1

DECISION: See paragraphs 134-137

PARTIES :
Regina
Warren Alan FORBES

FILE NUMBER(S): SC 70039/03; 70010/03

COUNSEL: Crown: Ms L Wells
Prisoner: Mr G Nicholson QC
Mr G Halsell

SOLICITORS: Crown: Director of Public Prosecutions
Prisoner: Patricia White & Associates

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J

Friday, 7 May 2004

70039/03

70010/03

R v Warren Alan FORBES

REMARKS ON SENTENCE

1 HULME J: The Prisoner appears for sentence in respect of 2 offences of manslaughter.

2 On 15 October 2003 he pleaded not guilty to a charge that on 6 January 2002 he murdered Ross Allan Kimball but pleaded guilty to the manslaughter of Mr Kimball. The Crown indicated that it was willing to accept that plea in full discharge of the indictment. Evidence relevant to the question of sentence was given on 5 December 2003 but by agreement of the parties the imposition of the sentence was deferred pending the Prisoner’s trial in respect of the death of Andrew Hullick.

3 On 16 February 2004 a trial of the Prisoner commenced on a charge that on 3 May 2002 he murdered Andrew Hullick. On Wednesday 17 March 2004 a jury brought in a verdict of not guilty of murder but guilty of manslaughter.

Death of Ross Kimball

4 It follows from the Prisoner’s plea that, as between the Crown and the Prisoner, all the facts implicit in his plea are established. The evidence concerning the commission of the first offence is contained in a Statement of Facts which was tendered without objection and which was not the subject of challenge. In these circumstances I am entitled to regard the matters set out in that document as also established. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the Prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities – see Pilley (1991) 56 A Crim R 202 at 203-4; R v Olbrich (1999) 199 CLR 270.

5 The events dealt with in the Statement of Facts fall within a small compass. The document shows that the deceased, his wife and some friends left the Globe Hotel in Albury at closing time, about 3.30am, on Sunday 6 January 2002. The Prisoner and some of his friends including Tristan Ball, Adam Hodge and Ahmed Dibb also left the hotel at that time. The members of these groups and others were then congregated on the footpath outside the hotel. While there, the deceased accidentally bumped the Prisoner but there was no animosity from either of them at that time.

6 Mr Ball commenced arguing with the deceased over the bumping incident. The Prisoner then became involved in an argument with the deceased, culminating in an…

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 Forbes

Details

AGLC: R v Forbes [2004] NSWSC 421
Case: [2004] NSWSC 421
Decision Date: 7 May 2004

CaseChat Overview and Summary

Warren Forbes was sentenced by Hulme J in the Supreme Court of New South Wales for two counts of manslaughter. Forbes had pleaded guilty to manslaughter in relation to the death of Ross Kimball and was found guilty of manslaughter by a jury in relation to the death of Andrew Hullick. The legal issues Hulme J had to decide included whether Forbes had taken a loaded revolver to the scene with the intent to use it, whether Forbes' actions were a reasonable response in the circumstances as he perceived them to be, and what sentence should be imposed. Hulme J concluded that Forbes had taken the revolver with the intent to use it, and that his actions were not a reasonable response. In determining the sentence, Hulme J considered the purposes of sentencing, including general deterrence, retribution, and protection of the community. The judge imposed a sentence of 12 years imprisonment with a non-parole period of 9 years for the manslaughter of Ross Kimball, and a sentence of 12 years imprisonment with a non-parole period of 8 years for the manslaughter of Andrew Hullick, with the sentences to be served consecutively.

Orders