R v Good - [2010] NSWSC 402

CITATION: R v Good [2010] NSWSC 402

HEARING DATE(S): 03/02/10 - 04/03/10, 08/03/10, 01/04/10, 14/04/10

JUDGMENT DATE :
6 May 2010

JUDGMENT OF: Buddin J

DECISION: For the manslaughter of Mario Banovic, the offender is sentenced to a non-parole period of 4 years 9 months to commence on 9 December 2008 and to expire on 8 September 2013 with a total sentence of 7 years 9 months imprisonment to expire on 8 September 2016

CATCHWORDS: CRIMINAL LAW - sentence - offender convicted of manslaughter following trial for murder - excessive self-defence - offender's early offer to plead guilty to manslaughter rejected by Crown

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: MAH v R [2006] NSWCCA 226
R v Borkowski [2009] NSWCCA 102
R v Boyd [2004] NSWSC 263
R v FD & JD (2006) 160 A Crim R 392
R v Forbes [2005] NSWCCA 377
R v Muddle [2004] NSWSC 403
R v Oinonen [1999] NSWCCA 102
R v Previtera (1997) 94 A Crim R 76
R v Ward [2005] NSWSC 266
R v Williamson [2008] NSWSC 686

PARTIES: Regina
Anthony Peter Good

FILE NUMBER(S): SC 2009/9020

COUNSEL: P Barrett (Crown)
C Davenport SC (Offender)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)
Peter Katsoolis Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 6 MAY 2010

2009/9020 - REGINA v ANTHONY PETER GOOD
REMARKS ON SENTENCE

1 HIS HONOUR: Anthony Peter Good (the offender) was indicted on a charge that he murdered Mario Banovic (the deceased) at St Clair on 7 June 2008. He was acquitted by a jury of that charge but convicted of the alternative charge of manslaughter, the maximum penalty for which is imprisonment for 25 years. There is no standard non-parole period which is applicable to this offence. It is my obligation to sentence the offender, in accordance with well-established principles, for the offence of which he has been convicted.

2 A considerable number of witnesses, including the offender, gave evidence during the course of the trial. Nevertheless, subject to one matter to which I shall refer in due course, the factual background to the offence was not the subject of any significant dispute.

3 The offender and the deceased were well-known to one another. The fatal incident occurred at the 21^st birthday party of Erhan Kurtulmus, who was friendly with both of them. It occurred during the course of a fight in which the offender stabbed the deceased a number of times with a knife.

4 The uncontested evidence from Dr Langlois, who performed the post-mortem, was that the deceased sustained six stab wounds in all. Dr Langlois gave evidence that one of the stab wounds to the deceased’s abdomen, which proved to be the fatal injury, penetrated his colon and then his aorta causing the deceased to have a cardiac arrest. An ambulance arrived shortly after the incident and immediately transported the deceased to hospital where he underwent emergency surgery. Tragically…

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 Good

Details

AGLC: R v Good [2010] NSWSC 402
Case: [2010] NSWSC 402
Decision Date: 6 May 2010

CaseChat Overview and Summary

In the matter of R v Good, the defendant was convicted of manslaughter following a trial where he was charged with murder. The case was heard in a court of criminal jurisdiction. The key issue before the court was to determine an appropriate sentence for the defendant, who had pleaded guilty to manslaughter only after his initial offer to plead guilty to the charge was rejected by the Crown. The defendant's conviction stemmed from his involvement in a violent altercation in which he had used excessive force, resulting in the death of the victim.

The court was tasked with balancing the gravity of the offence with the defendant's early offer to plead guilty to a lesser charge. The defence argued that the defendant's early plea should be considered as a mitigating factor in sentencing. Conversely, the Crown emphasised the severity of the crime and the need for a sentence that reflects the loss of life and the excessive nature of the defendant's actions. The court needed to weigh these considerations to arrive at a just and proportionate sentence.

The court acknowledged the defendant's early offer to plead guilty to manslaughter as a mitigating factor but also considered the excessive use of force and the resulting death. Ultimately, the court determined that while the offer was a sign of remorse, it did not sufficiently mitigate the severity of the offence. The court imposed a sentence that reflected both the mitigating and aggravating factors, ensuring that the sentence was commensurate with the seriousness of the crime.

Orders