R v Haines; R v Lee - [2016] NSWSC 1333

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Haines; R v Lee [2016] NSWSC 1333
Hearing dates: 2 September 2016
Date of orders: 29 September 2016
Decision date: 29 September 2016
Before: Harrison J
Decision:
For the offence of armed robbery with wounding sentence Lloyd Edward Haines to a fixed term of imprisonment of 5 years commencing on 12 August 2014 expiring on 11 August 2019.

For the offence of murder sentence Lloyd Edward Haines to imprisonment for 14 years and 8 months consisting of a non-parole period of 11 years commencing on 12 August 2015 expiring on 11 August 2026 with a balance of term of 3 years and 8 months expiring on 11 April 2030.

The first day upon which Lloyd Edward Haines will become eligible for release on parole is 12 August 2026.

For the offence of armed robbery with wounding sentence Michael Lee to a fixed term of imprisonment of 5 years commencing on 13 August 2014 expiring on 12 August 2019.

For the offence of murder sentence Michael Lee to imprisonment for 17 years and 6 months consisting of a non-parole period of 13 years and 6 months commencing on 13 August 2015 expiring on 12 February 2029 with a balance of term of 4 years expiring on 12 February 2033.
The first day upon which Michael Lee will become eligible for release on parole is 13 February 2029.
Catchwords: CRIMINAL LAW – sentence – murder – constructive murder – victim fatally stabbed during the course of aggravated robbery – where no proof of intention to kill or inflict serious injury – low level of planning – offences not premeditated – objective seriousness below mid-range – disparity between offenders appropriate – separate and different roles – contrition and remorse – significant criminal histories and drug addiction – limited prospects of rehabilitation – where reduced scope for general deterrence – appropriateness of punishment and retribution – no special circumstances shown
Legislation Cited: Crimes (High Risk Offenders) Act 2000
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Cartwright (1989) 17 NSWLR 243
R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462
R v JB; R v RJH [1999] NSWCCA 93
R v McGarritty (NSWCCA 10 June 1994 unreported)
R v Wran [2016] NSWSC 1015
Raad v R [2011] NSWCCA 138
Category: Sentence
Parties: Regina (Crown)
Lloyd Edward Haines (Offender)
Michael Lee (Offender)
Representation:
Counsel:
P McGrath SC (Crown)
E Ozen (Haines)
C Smith SC (Lee)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Benjamin and Leonardo Criminal Defence Lawyers (Haines)
Legal Aid NSW (Lee)

File Number(s): 2014/237407 (Haines); 2014/238620 (Lee)
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: Lloyd Edward Haines and Michael Lee have each pleaded guilty to the murder of Daniel McNulty and to the armed robbery with wounding of Brett Fitzgerald on 10 August 2014. Mr Haines entered pleas of guilty to these offences on 21 June 2016. Mr Lee had done so on 16…

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.

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Details

Case: [2016] NSWSC 1333
Decision Date: 29 September 2016

CaseChat Overview and Summary

The case involved two defendants, Haines and Lee, who were charged in relation to the murder of a victim during an aggravated robbery. The victim was fatally stabbed, but there was no evidence of an intention to kill or cause serious injury. The pair were sentenced by the court, which needed to consider the appropriate level of punishment, taking into account the level of planning, the offenders' roles, and their individual circumstances. The court also needed to determine if the disparity in sentences was appropriate, given the differing roles and levels of remorse shown by the defendants.

The legal issues before the court included the determination of the appropriate sentence for the murder charges, the consideration of the objective seriousness of the crime, and the assessment of individual culpability. The court had to weigh the objective seriousness of the crime against the level of planning and the absence of an intention to kill or cause serious injury. It also had to consider the roles played by each defendant and the degree of contrition and remorse shown. The court further needed to assess the defendants' criminal histories and drug addiction, as well as their prospects for rehabilitation.

The court held that the objective seriousness of the crime was below the mid-range, given the low level of planning and the lack of intent to kill or cause serious injury. The disparity in sentences was deemed appropriate due to the separate and different roles played by each defendant, with one acting as the driver and the other as the assailant. The court noted the limited prospects of rehabilitation and the reduced scope for general deterrence. The sentence imposed on each defendant was considered appropriate in terms of punishment and retribution, taking into account their contrition and remorse, as well as their significant criminal histories and drug addiction.

The court ordered that Haines be sentenced to a term of imprisonment with a non-parole period, and Lee to a lesser term with a shorter non-parole period. The sentences reflected the appropriate level of punishment and retribution for the respective roles and levels of culpability of the defendants.

Orders