Crown: SE O'Connor Appellant: Jeffreys & Associates
DECISION:
The appeal is allowed; The sentence imposed on the Applicant on 4 June 1999 in respect of the offence of murder is quashed; In lieu thereof the Applicant is sentenced in respect of the offence of murder to imprisonment for a term of 18 years commencing on 3 March 2001 such term to include a non-parole period of 13 years and to be concurrent from that date with the sentence imposed on 4 June 1999 for malicious wounding; The Court specifies as the date upon which the Applicant shall be eligible for release on parole, 3 March 2014
- 27 -IN THE COURT OF
No 60316 of 1999
POWELL JA HULME J DOWD J Wednesday, 28 February 2001
REGINA -v- Murray Walter HEARNE
JUDGMENT
1 THE COURT: On 4 June 1999, this Applicant for leave to appeal was sentenced by Wood CJ at CL in respect of 2 charges:-
(i) the murder on 28 February 1998 of Constable Peter Forsyth, and, (ii) the malicious wounding of Constable Jason Semple on 27 February 1998, with intent to do him grievous bodily harm.
2 The maximum penalties prescribed for these offences are, respectively, life imprisonment and imprisonment for 25 years.
3 The sentences imposed were, on the first charge, a minimum term of penal servitude for 20 years commencing on 3 March 1998, with an additional term of 7 years and, on the second, a fixed concurrent term of 6 years. These sentences were formulated to take account of the totality of the Applicant’s criminality, Wood CJ at CL having expressed the view that, considered in isolation, individual sentences “involving a minimum term of the order of 18 years, with an additional term of 5 years”, and “a minimum term in the order of 6 years, with an additional term of 2 years” would have been appropriate. His Honour also observed that a minimum term less than that imposed would not properly reflect the objective and subjective criminality of the Applicant.
4 It is contended on behalf of the Applicant that the sentences were excessive. In support of that proposition, it was submitted that:-
(i) the sentence was manifestly excessive and outside the appropriate range of sentences for the Applicant’s criminality, and
(ii) the sentencing judge failed to given any or adequate weight to the following matters -
(a) that the Applicant effectively surrendered himself to police,
(b) that the Applicant pleaded guilty,
(c) the Applicant’s contrition…
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
AGLC
R v Hearne [2001] NSWCCA 37
Case
[2001] NSWCCA 37
Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal considered an appeal against sentence by Murray Walter Hearne, who had been convicted of murder and malicious wounding with intent to cause grievous bodily harm. The applicant was sentenced to a minimum term of 20 years, with an additional term of 7 years for murder and a fixed term of 6 years for malicious wounding. The appeal was allowed, and the sentence for murder was quashed and replaced with a sentence of 18 years imprisonment, with a non-parole period of 13 years, to commence on 3 March 2001. The Court found that the sentence imposed for murder was manifestly excessive, and that the applicant's plea of guilty, remorse, and prior good character should have been given more weight. The Court also noted that the applicant's youth and lack of premeditation should have been considered more favourably in the sentencing process. The new sentence for murder was to be partly concurrent with the sentence for malicious wounding, and the applicant would be eligible for release on parole on 3 March 2014.