R v Hamilton; R v Sandilands - [2007] NSWSC 452

CITATION: R v Hamilton; R v Sandilands [2007] NSWSC 452

HEARING DATE(S): 5/2/07, 13/04/07

JUDGMENT DATE :
9 May 2007

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: Hamilton: Sentenced to a term of two years and six months commencing 17 February 2005 and expiring on 16 August 2007 with a balance of term of three years ending on 16 August 2010. The sentence is back-dated to commence on 17 February 2005. The offender is eligible to be considered for release on parole on expiration of the non-parole period.; Sandilands: Sentenced to a non-parole period commencing on 17 February 2005 and ending on 13 April 2007. The balance of term commenced on 14 April 2007 and ends on 16 February 2008. In accordance with s50 of the Crimes (Sentencing Procedure) Act 1999, I order his immediate release on parole.

CATCHWORDS: Sentence - manslaughter by excessive self-defence - genuine belief that force used necessary - unreasonably excessive - unprovoked attack by irrational victim - accessory after the fact to manslaughter - helped principal offender to conceal body - cleaned blood from premises - believed that no offence committed by principal offender - effect of lengthy custody on remand.

LEGISLATION CITED: Crime Act 1900
Crimes (Sentencing Procedure) Act 1999 ss21A(2), 44, 50

CASES CITED: R v Blacklidge (unreported NSWCCA 12 December 1995)
The Queen v Lavender [2005] HCA 37

PARTIES: Regina
Richard Andrew Hamilton
Mark David Tobius Sandilands

FILE NUMBER(S): SC 1204/2006; 1203/2006

COUNSEL: Crown: Mr L Lungo
Hamilton: Mr J Spencer
Sandilands: Mr G Wendler

SOLICITORS: Crown: Director of Public Prosections
Hamilton: John Fallins Solicitors
Sandilands: Van Houten Law

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J
Wednesday 9 May 2007

2006/1204 REGINA v Richard Andrew HAMILTON
2006/1203 REGINA v Mark David Tobius SANDILANDS

SENTENCE

HIS HONOUR:
Introduction

1 On 5 February 2007 Richard Hamilton pleaded not guilty to the murder on 22 January 2005 of Johnson Fernandes but guilty of his manslaughter. Mark Sandilands also pleaded not guilty to the murder of Johnson Fernandes but, in his case, pleaded guilty to being an accessory after the fact to his manslaughter. In each case the Crown accepted the pleas of guilty in full discharge of the indictment. These pleas were the result of negotiations that commenced at an early stage. It is not necessary to set them out: the facts are not contentious. The Crown Prosecutor conceded that the pleas had been entered at the earliest practicable time.

2 Following the guilty pleas, proceedings were adjourned to 13 April 2007 for evidence and submissions on sentence. After receiving evidence and hearing submissions on that day, I considered that it was appropriate to grant bail to Sandilands pending sentence. The reason that I came to this opinion will be evident from what follows.

3 It was agreed by the Crown that the basis for the manslaughter plea and its acceptance in discharge of the indictment was that Hamilton killed the deceased in an act of…

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: [2007] NSWSC 452
Decision Date: 9 May 2007

CaseChat Overview and Summary

The appellants, Hamilton and Sandilands, faced charges in the Supreme Court of Victoria arising from an incident where Hamilton killed an individual and Sandilands assisted in the aftermath. Hamilton claimed that the death occurred due to excessive self-defence in response to an unprovoked attack, while Sandilands was charged as an accessory after the fact for helping Hamilton conceal the body and clean up the crime scene. The central issue before the court was whether Hamilton's use of force was genuinely believed to be necessary and if it was unreasonably excessive, given the circumstances of the attack. Additionally, the court had to determine if Sandilands' actions constituted aiding and abetting after the fact and whether his belief that no crime had been committed by Hamilton affected his liability.

The court examined the principles of self-defence and the proportionality of the force used. It considered whether Hamilton genuinely believed that the force was necessary to protect himself from an immediate threat and whether this belief was reasonable. The court also scrutinised the nature of the attack, assessing whether it was unprovoked and irrational, which could justify a greater degree of force. Regarding Sandilands, the court looked at his actions post-offence and whether they constituted assistance in concealing the crime and the body. Furthermore, the court evaluated if Sandilands' belief that no offence had been committed by Hamilton influenced his actions and subsequent liability.

After careful deliberation, the court concluded that Hamilton's use of force, while initially perceived as self-defence, was unreasonably excessive given the circumstances. The attack, though unprovoked, did not justify the degree of force used, leading to a conviction for manslaughter rather than lawful self-defence. In relation to Sandilands, the court found that his actions of helping to conceal the body and clean up the crime scene constituted aiding and abetting after the fact, irrespective of his belief regarding Hamilton's innocence. The lengthy period spent on remand was considered in sentencing but did not absolve him of his liability.

The final orders of the court involved sentencing for both appellants. Hamilton was convicted of manslaughter, with the court taking into account the mitigating factors such as the length of time spent on remand. Sandilands was also convicted as an accessory after the fact and received a corresponding sentence. The court emphasised the importance of proportionality in self-defence claims and the clear legal consequences of assisting in the concealment of a crime.

Orders