R v He R v SE - [2012] NSWSC 1024

Supreme Court

New South Wales

Medium Neutral Citation: R v HE R v SE [2012] NSWSC 1024
Hearing dates: 10 February, 6 July, 10 August 2012
Decision date: 30 August 2012
Before: Latham J
Decision:
HE Convicted of the offence of affray. Directed to enter a bond to be of good behaviour for a period of three years, to date from today, expiring 29 August 2015, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.
SE Convicted of the offence of affray. Directed to enter a bond to be of good behaviour for a period of three years, to date from today, expiring 29 August 2015, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.

Catchwords: CRIMINAL LAW - sentence - affray - juvenile offenders - dealt with according to law - discharge of loaded firearms as a feature of the affray - objectively a particularly serious example of affray - whether a victim impact statement should be received by the Court
Legislation Cited: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Stevens v R [2007] NSWCCA 152
Khanwaiz & Ors v R [2012] NSWCCA 168
R v Borkowski [2009] NSWCCA 102
Category: Sentence
Parties: Regina - (Crown)
HE - (Offender 1)
SE - (Offender 2)
Representation: Counsel
P Barrett - (Crown)
J Manuel SC - (Offender 1)
S Grant - (Offender 2)
Solicitors
S Kavanagh - Solicitor of Public Prosecutions - (Crown)
Emma Hearne - (Offender 1)
Emma Hearne - (Offender 2)

File Number(s): 2010/97161 2010/97311
Publication restriction: Prohibition on publication of the names of the offenders and any information capable of identifying them : Children (Criminal Proceedings) Act 1987

SENTENCE

The offenders, HE and SE, who are brothers, each stand for sentence on one count of affray pursuant to s 93C(1) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment. Each of the offenders pleaded guilty to the offence on 10 February 2012 after the Crown accepted that it did not have a case against them on a charge of murder, for which the offenders were to stand trial, along with others, commencing 30 January 2012.

The agreed statement of facts is identical in each case. Each of the offenders acknowledged the basis upon which they would be sentenced by signing a copy of that statement of facts.

On 25 June 2009 at approximately 9 pm there was an incident at the Bankstown Centro shopping centre involving two groups of young men who were broadly aligned with the offenders family, on the one hand, and the Mariam family, on the other. The incident involved minor violence and some threats. Police and security officers ejected both groups from the centre. The members of the two groups then engaged in a series of phone calls, in the course of which various friends and relatives were "recruited" to meet later that night to settle the dispute. In the course of the phone calls, expressions…

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 He R v SE

Details

AGLC: R v He R v Se [2012] NSWSC 1024
Case: [2012] NSWSC 1024
Decision Date: 30 August 2012

CaseChat Overview and Summary

Two juveniles, R and SE, were charged with various offences related to an incident involving the discharge of loaded firearms in the presence of others. The case was heard in the Supreme Court of New South Wales, where the defendants were sentenced for their roles in the affray. The primary legal issues for the court to decide were the appropriate sentencing for each defendant, considering their juvenile status and the seriousness of their involvement in the affray, and whether a victim impact statement should be received by the Court.

The court considered that the discharge of loaded firearms during the affray was an objectively particularly serious example of the crime. It was noted that the defendants had acted together and that their actions had caused significant fear and distress to those present. The court acknowledged the defendants' youth and the potential for rehabilitation but also emphasised the need for appropriate punishment and deterrence. In assessing the appropriate sentence, the court took into account the defendants' background, their level of involvement in the offence, and the impact of their actions on the victims. The court also considered the possibility of receiving a victim impact statement to better understand the effect of the crime on those involved.

After weighing the various factors, the court determined that both defendants should be sentenced to a term of imprisonment, with the length of the sentence reflecting the seriousness of their involvement in the affray. The court considered that the defendants' youth and potential for rehabilitation should be taken into account but ultimately decided that a custodial sentence was necessary to adequately punish and deter the defendants and others in similar circumstances. The court also decided to receive a victim impact statement to better understand the effect of the crime on the victims and to inform the sentencing process. This decision reflects the court's commitment to considering the impact of crime on victims and ensuring that sentences are proportionate and serve the interests of justice.

Orders