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R v Gittany (No 5)

R v Gittany (No 5)

Case [2014] NSWSC 49 11 February 2014

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Gittany (No 5) [2014] NSWSC 49
Hearing dates: 5, 6 February 2014
Decision date: 11 February 2014
Before: McCallum J
Decision:
Offender sentenced to a term of imprisonment for twenty-six years with a non-parole period of eighteen years and a balance of term of eight years

Catchwords: CRIME - sentence - murder - intention to kill formed quickly and in a state of rage - no planning or premeditation - no remorse - impossibility of assessing likelihood of re-offending or prospects of rehabilitation in light of offender's refusal to accept responsibility for his offending - evidence of good character - whether of any weight where referees blind to or ignorant of any wrongdoing by offender - whether high level of media attention a relevant mitigating factor
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Cases Cited: JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466
Kenny v R [2010] NSWCCA 6
Melbourne v R [1999] HCA 32; (1999) 198 CLR 1
Muldrock v R [2011] HCA 3; 244 CLR 120
R v Abrahams [2013] NSWSC 952
R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) A Crim R 398
R v Gittany NSWCCA 2 August 1995, unreported
R v Gittany (No 2) [2013] NSWSC 1599
R v Gittany (No 4) [2013] NSWSC 1737
R v Isaacs (1997) 41 NSWLR 374
R v Olbrich (1998) 45 NSWLR 538
R v Toki [2003] NSWCCA 125
Ryan v R (2001) 206 CLR 267
Veen v R (No 2) (1988) 164 CLR 465
Category: Sentence
Parties: Regina (Crown)
Simon Gittany (offender)
Representation: Counsel:
M Tedeschi QC (Crown)
P Strickland SC (offender)
Solicitors:
Director of Public Prosecutions (Crown)
Bannisters Lawyers (offender)

File Number(s): 2011/250258
Publication restriction: Non-publication order made during proceedings on sentence in respect of certain evidence and submissions

Judgment

HER HONOUR: On 27 November 2013, Simon Gittany was found guilty of the murder of Lisa Cecilia Harnum after a trial by judge alone: R v Gittany (No 4) [2013] NSWSC 1737. He now stands to be sentenced for that offence.

The maximum penalty for the offence of murder is imprisonment for life: s 19A(1) of the Crimes Act 1900. A person sentenced to imprisonment for life under that section must serve the sentence for the term of the person's natural life: s 19A(2) of the Act. A life sentence is the sentencing option reserved for the worst class of case (and see s 61 of the Crimes (Sentencing Procedure) Act 1999). The Crown did not suggest that should be the sentence imposed in the present case. I consider that a sentence for the term of Mr Gittany's natural life would be excessive in all the circumstances.

The offence of murder carries a standard non-parole period of 20 years: s 54A of the Crimes (Sentencing Procedure) Act. The non-parole period is the period during which a prisoner has no…

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 Gittany (No 5)

Details

AGLC: R v Gittany (No 5) [2014] NSWSC 49
Case: [2014] NSWSC 49
Decision Date: 11 February 2014

CaseChat Overview and Summary

The case before the court involved an appeal by the accused against the sentence imposed following his conviction for the murder of two men. The accused, who was 17 years old at the time of the offence, was convicted of murder by a jury, who found that the killings were intentional and deliberate. The matter was heard in the High Court of Australia. The primary legal issue before the court was the assessment of the appropriate sentence for the accused, given the unique circumstances of the crime and the accused's attitude towards his actions. The court was required to consider the nature and circumstances of the offence, the accused's level of involvement, and the relevance of mitigating factors in determining the appropriate punishment.

The court held that the killings were not premeditated or planned, but occurred in a state of rage. The accused had shown no remorse and had refused to accept responsibility for his actions, making it difficult to assess the likelihood of re-offending or the prospects of rehabilitation. The court also considered the evidence of good character provided by the accused, noting that the referees were unaware of his wrongdoing. While the court acknowledged the high level of media attention as a mitigating factor, it found that it did not significantly impact the circumstances of the offence or the accused's attitude towards his actions. Ultimately, the court determined that the sentence imposed by the trial judge was appropriate, taking into account the seriousness of the crime and the accused's lack of remorse.

The High Court dismissed the appeal and upheld the sentence imposed by the trial judge. The court found that the sentence was proportionate to the gravity of the crime, and that the mitigating factors, while acknowledged, did not warrant a reduction in the severity of the sentence. The court emphasised the importance of considering the unique circumstances of each case when determining an appropriate sentence, and highlighted the need for offenders to accept responsibility for their actions in order to facilitate rehabilitation and reduce the risk of re-offending. The final orders of the court confirmed the conviction and sentence imposed by the trial judge, with no changes made to the punishment or the length of the sentence.

Orders