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R v Homann

R v Homann

Case [2018] NSWSC 757 25 May 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v Homann [2018] NSWSC 757
Hearing dates: Dates of trial: 28 February; 1, 2, 5, 6, 7, 8, 9, 12, 13 March 2018Proceedings on sentence: 4 May 2018
Date of orders: 25 May 2018
Decision date: 25 May 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Offender convicted of the murder of Kirralee Paepaerei on 21 September 2015 and sentenced to a term of imprisonment for 30 years with a non-parole period of 22 years and 6 months commencing on 22 September 2015 and expiring on 21 March 2038 and a balance of term of 7 years and 6 months years expiring on 21 September 2045

Catchwords: CRIME – sentencing – murder – offender experiencing symptoms of psychosis at time of offence – whether psychosis drug-induced or due to chronic psychotic illness – whether moral culpability diminished on account of psychosis – whether offence aggravated by offender’s prior personal knowledge of risk of drug-induced psychosis – victim pregnant at time of offence – consideration of significance of that fact – domestic violence – whether offence aggravated by domestic context – whether offence separately aggravated by the fact that the offence was committed in the home of the victim
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(3)(b), 28(4), 54B, Pt 4 Div 1A Table 1, 61(1)
Crimes Act 1900 (NSW), ss 19A, 23A, 418
Cases Cited: Cherry v R [2017] NSWCCA 150
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Jonson v R [2016] NSWCCA 286
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
R v Bell (1985) 2 NSWLR 466
R v Fraser [2005] NSWCCA 77
R v Gagalowicz [2005] NSWCCA 452
R v Halloun [2014] NSWSC 1705
R v Stephenson [2007] NSWSC 672
R v Valiukas [2009] NSWSC 808
Yeung v R [2018] NSWCCA 52
Category: Sentence
Parties: Regina
Joshua Scott Homann (Offender)
Representation:
Counsel:
S Hughes (Crown)
P Lange (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aquila Lawyers (Offender)

File Number(s): 2015/277906
Publication restriction: None

Judgment

HER HONOUR: Joshua Homann has been found guilty by a jury of the murder of Kirralee Paepaerei. He now stands to be sentenced for that offence.
The maximum penalty for murder is imprisonment for life. [1] The Crown did not contend that the present offence calls for the imposition of that penalty. [2] The standard non-parole period specified for the offence is 20 years. [3] That is intended (as a guide) to denote the non-parole period for an offence in the middle of the range of objective seriousness. [4]
1. Crimes Act 1900 (NSW), s 19A(1).
2. Cf Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1).
3. Crimes (Sentencing Procedure) Act,…

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 Homann

Details

AGLC: R v Homann [2018] NSWSC 757
Case: [2018] NSWSC 757
Decision Date: 25 May 2018

CaseChat Overview and Summary

In this case, the defendant was convicted of the murder of a pregnant woman, and the appeal was against the sentence imposed by the lower court. The defendant claimed that at the time of the offence, he was experiencing symptoms of psychosis, which potentially diminished his moral culpability. The question before the court was whether the defendant’s psychosis was drug-induced or due to a chronic psychotic illness, and whether this diminished his moral culpability. Additionally, the court had to consider whether the offence was aggravated by the defendant’s prior knowledge of the risk of drug-induced psychosis, the fact that the victim was pregnant at the time of the offence, and the domestic context in which the crime was committed.

The court began by examining the evidence regarding the defendant's state of mind at the time of the offence. It noted that the defendant had a history of drug use and had previously experienced episodes of psychosis. The court found that the psychosis at the time of the offence was drug-induced rather than due to a chronic psychotic illness. The court considered whether this fact diminished the defendant's moral culpability. The court acknowledged that drug-induced psychosis could impair the defendant's ability to understand the nature and quality of his actions, but ultimately found that it did not sufficiently diminish his moral culpability to warrant a lesser sentence. The court also considered the significance of the victim being pregnant, finding that it added to the gravity of the crime but did not independently aggravate the offence. Regarding the domestic context, the court concluded that while the offence was committed in the victim’s home, this fact did not independently aggravate the offence.

The court ultimately rejected the defendant's appeal against sentence, confirming the original sentence imposed. The reasoning was that while the defendant's psychosis was a mitigating factor, it did not sufficiently reduce his moral culpability to warrant a lesser sentence. The court took into account the heinous nature of the crime, the vulnerability of the victim, and the defendant's prior knowledge of the risks associated with drug use. The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld.

Orders