R v Irvine - [2008] NSWCCA 273

New South Wales
Court of Criminal Appeal

CITATION: R v Irvine [2008] NSWCCA 273

HEARING DATE(S): 8 October 2008

JUDGMENT DATE:
21 November 2008

JUDGMENT OF: Hodgson JA at 1; Kirby J at 9; Hislop J at 10

DECISION: Appeal dismissed.

LEGISLATION CITED: Crimes Act, 1900

CASES CITED: R v Carroll [2008] NSWCCA 218
R v Zamagias [2002] NSWCCA 17
Kwok v R [2007] NSWCCA 281
Markarian v R [2005] HCA 25; (2005) 228 CLR 357

PARTIES: R v Chad Kyle Irvine

FILE NUMBER(S): CCA 2008/3172

COUNSEL: G. Rowling (Crown)
S.J. Odgers SC (Respondent)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/0587

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

LOWER COURT DATE OF DECISION: 11 July 2008

2008/3172

HODGSON JA
KIRBY J
HISLOP J
Friday 21 November 2008

R v CHAD KYLE IRVINE

Judgment

1 HODGSON JA: I agree with Hislop J.

2 I would add that the Crown placed particular reliance on the recent decision of the Court of Criminal Appeal in R v Carroll [2008] NSWCCA 218.

3 In that case, an offender had been sentenced for manslaughter in the District Court by the imposition of a non-parole period of 18 months and a further term of imprisonment of 18 months, with the sentence to be served by way of periodic detention. The Court of Criminal Appeal by majority allowed a Crown appeal, and ordered that the non-parole period be served by way of full-time custody.

4 There were similarities to the present case. The offender was only 20 years old. The death of the victim was the result of a single head-butt, which unexpectedly caused death when the victim fell backwards and the back of his head hit the roadway with force. Just before the head-butt, the victim had said words to the effect that he would get a gun and shoot people. The offender was of excellent previous character and was deeply remorseful.

5 Consistency in sentencing is desirable, but it is not necessarily correct to use a result in one case to dictate the result in another. And there are in my opinion important differences between Carroll and the present case.

6 In Carroll, the offender was affected by alcohol and became aggressive towards the victim, in circumstances where the victim’s reference to getting a gun was considered by the majority of the Court of Criminal Appeal to be no more than an idle boast.

7 In the present case, the offender’s approach to the victim was with a view to achieving a proper resolution of prior unlawful conduct by the victim, by having the victim return to his car and await the arrival of police. The sentencing judge accepted that the offender believed he was defending himself when he punched the victim, after the victim had lunged at him. However, the offender was guilty of manslaughter because his behaviour was not proportionate to the circumstances.

8 In the particular…

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 Irvine

Details

AGLC: R v Irvine [2008] NSWCCA 273
Case: [2008] NSWCCA 273
Decision Date: 21 November 2008

CaseChat Overview and Summary

The case of R v Irvine was heard in the New South Wales Court of Criminal Appeal, with the hearing taking place on 8 October 2008 and the judgment being handed down on 21 November 2008. The decision was made by Hodgson JA, Kirby J, and Hislop J. The appeal was brought against the sentence handed down by Judge Flannery DCJ in the District Court on 11 July 2008. Chad Kyle Irvine had pleaded guilty to the unlawful killing of Shane Larkins, contrary to section 18(1)(b)/24 of the Crimes Act, 1900, and was sentenced to a non-parole period of two years and a balance of term of one year, to be served by way of periodic detention. The Crown appealed against the sentence, arguing that it was manifestly inadequate.

The legal issues before the Court of Criminal Appeal were whether the sentence imposed by Judge Flannery DCJ was appropriate given the objective seriousness of the offence, and whether the Court should intervene in the sentencing decision. The Court of Criminal Appeal considered the relevant sentencing principles, including the objective seriousness of the offence, the need for general deterrence and retribution, and the need to foster the rehabilitation of the offender.

The Court of Criminal Appeal found that the sentence imposed by Judge Flannery DCJ was open to her in the circumstances of the case. The Court acknowledged that the respondent believed he was defending himself when he struck the deceased, and that the force of the blow was increased by the deceased's failure to ride with the punch. The Court also took into account the respondent's youth and the need to foster his rehabilitation, as well as the pre-existing medical condition of the deceased, which contributed to his death. The Court held that the sentence imposed did not require intervention by the Court of Criminal Appeal, and the appeal was dismissed.

The Court of Criminal Appeal emphasised the broad discretion of sentencing judges, particularly in relation to the offence of manslaughter. The Court found that the sentence imposed by Judge Flannery DCJ, having regard to the facts as found by her Honour, was not such as to require intervention by the Court of Criminal Appeal. The Court held that the sentence was appropriate in the circumstances of the case and did not err in finding the offence to be well below the mid range for such offences.

Orders