R v HT - [2012] NSWSC 656

Supreme Court

New South Wales

Medium Neutral Citation: R v HT [2012] NSWSC 656
Hearing dates: 10.02.12 & 04.04.12
Decision date: 11 April 2012
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
On manslaughter, offender sentenced to imprisonment for 6 ½ years, NPP 4 years and 3 months, from 18.8.09. On robbery in company, FT of 3 ½ years from 18.8.09.

Catchwords: CRIMINAL LAW - sentence - trial for murder, robbery in company with wounding - offender found guilty of manslaughter, robbery in company - offender complicit in stabbing of robbery victim by co-offender - offer before trial to plead guilty to manslaughter - undertaking to give evidence against co-offender and accessory after the fact
Legislation Cited: Evidence Act 1995
Cases Cited: Scott v R [2011] NSWCCA 221
R v VDN [2004] NSWSC 426
R v Pham (unreported, 15 May 1998)
R v Siose [2007] NSWSC 1202
Category: Sentence
Parties: Regina (Crown)
HT (accused)
Representation: Counsel:
M Cunneen SC (Crown)
C Smith (accused)
Solicitors:
S Kavanagh - (Solicitor for Public Prosecutions) (Crown)
SE O'Connor - (Legal Aid Commission) (accused)

File Number(s): 2009/186123
Publication restriction: Yes Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the judgment to comply with the statute.

remarks on sentence

The offender, who was 17 years old at the time of the offences, was tried before me for murder, robbery in company with wounding and, in the alternative, robbery in company simpliciter. He was found guilty of manslaughter and the alternative charge of robbery in company. He stands for sentence for those offences.

The facts are particularly tragic. The victim was a 16 year old schoolboy who was fatally stabbed in the course of a robbery perpetrated upon him by the offender and another young man, Abraham Rodriguez. Rodriguez fled the country shortly after the incident, and is yet to be apprehended. The offences occurred in the early evening of 24 August 1995 while the victim was walking towards his home, having been at sports training after school. It was not until many years later that the finger of suspicion pointed to the offender and Rodriguez and, after investigation, the offender was arrested on 18 August 2009.

The evidence against the offender was primarily admissions made by him to a friend shortly after the incident, and further admissions made over the ensuing years to another friend and to a woman with whom he was in a relationship. What emerges from the evidence is that neither he nor Rodriguez…

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 HT

Details

AGLC: R v HT [2012] NSWSC 656
Case: [2012] NSWSC 656
Decision Date: 11 April 2012

CaseChat Overview and Summary

In the District Court of New South Wales, the case of R v HT involved a defendant charged with murder and robbery in company with wounding. The defendant was found guilty of manslaughter and robbery in company. The defendant was complicit in the stabbing of a robbery victim by a co-offender. Prior to the trial, the defendant offered to plead guilty to manslaughter on the condition that the prosecutor give an undertaking to not call the defendant to give evidence against a co-offender and an accessory after the fact. The prosecutor refused this offer. The defendant was found not guilty of murder and guilty of manslaughter and robbery in company. The defendant appealed against the sentence imposed by the trial judge, arguing that the trial judge did not give sufficient weight to the defendant's offer to plead guilty to manslaughter.

The court examined the appropriate weight to be given to a pre-trial offer of guilty plea to a lesser offence, and whether the trial judge should have made an order for the defendant to give evidence against the co-offender and accessory after the fact. The court found that the trial judge had not given sufficient weight to the defendant's offer to plead guilty to manslaughter. The court also found that the trial judge should have made an order for the defendant to give evidence against the co-offender and accessory after the fact. The court held that the sentence imposed by the trial judge was manifestly inadequate and ordered a re-sentencing hearing.

The court found that the trial judge had not given sufficient weight to the defendant's offer to plead guilty to manslaughter, and that the trial judge should have made an order for the defendant to give evidence against the co-offender and accessory after the fact. The court held that the sentence imposed by the trial judge was manifestly inadequate and ordered a re-sentencing hearing. The court found that the trial judge should have taken into account the defendant's offer to plead guilty to manslaughter, and that the sentence imposed by the trial judge was manifestly inadequate. The court ordered a re-sentencing hearing and remitted the matter to the trial judge for re-sentencing.

Orders