R v Isherwood - [2013] NSWSC 1868

Supreme Court

New South Wales

Case Title: R v Isherwood

Medium Neutral Citation: [2013] NSWSC 1868

Hearing Date(s): 8 October, 21 November 2013

Decision Date: 12 December 2013

Jurisdiction: Common Law - Criminal

Before: Latham J

Decision:
Convicted of the murder of Angelo Kaloudis. Sentenced to a non-parole period of 11 years, to date from 30 November 2011, expiring 29 November 2022, with a balance of term of 6 years expiring 29 November 2028. Eligible for release to parole on 30 November 2022.

Catchwords: SENTENCE - plea of guilty - constructive murder - foundational crime of assault with intent to rob in company with wounding - assault on elderly homeless man on train - co-offender found guilty of manslaughter and assault with intent to rob in company with wounding - satisfied beyond reasonable doubt that offender played principal role - just below middle range of objective gravity for this particular type of murder - offender on conditional liberty at time of offence - discount of 15% for plea - finding of special circumstances on basis of offender's relative youth, fact this is offender's first time in custody, and difficulty of reintegration following lengthy incarceration

Legislation Cited: Crimes Act 1900

Cases Cited: R v Sharah (1992) 30 NSWLR 292
R v Jacobs (2004) 151 A Crim R 452

Category: Sentence

Parties: Regina - (Crown)
Nathan Isherwood - (Offender)

Representation

- Counsel: Counsel:
L Carr - (Crown)
J Fitzgerald - (Offender)

- Solicitors: Solicitors:
Solicitor for Public Prosecutions - (Crown)
Legal Aid NSW - (Offender)

File Number(s): 2011/278347

JUDGMENT

The offender, Nathan Isherwood, entered a plea of guilty to murder on 8 October 2013. The offence carries a maximum penalty of life imprisonment and carries a standard non parole period of 20 years. The plea was accepted by the Crown on the basis of constructive murder, that is, that the victim died as a result of an assault upon him by the offender, in company, in the course of a robbery with wounding.
The co-offender, Harley Page, was found guilty by a jury on 18 October 2013 of assault with intent to rob in company with wounding pursuant to s 98 of the Crimes Act 1900 and manslaughter. On 30 October 2013 he was sentenced to 9 years' imprisonment including a non-parole period of 6 years.
The Offence and the Offender's Role.
At approximately 4 am on 26 August 2011, the offender and Mr Page were both in an intoxicated state when they boarded a train at Hamilton that was travelling to Sydney. On the train they encountered and assaulted the deceased, Mr Angelo Kaloudis, a 76 year old homeless man who often travelled on the train between Newcastle and Sydney.
The offender stands to be sentenced according to an agreed statement of facts. Much of that document refers to the movements and observations of other persons who were in and around the same carriage of the train when the assault upon the deceased took place. It is not necessary to refer…

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 Isherwood

Details

AGLC: R v Isherwood [2013] NSWSC 1868
Case: [2013] NSWSC 1868
Decision Date: 12 December 2013

CaseChat Overview and Summary

In the case before the court, the respondent, Isherwood, was charged with constructive murder in relation to the death of an elderly homeless man during an assault with intent to rob in company with wounding. The victim was attacked on a train, and the offender's co-offender was found guilty of manslaughter and assault with intent to rob in company with wounding. The court was required to determine the appropriate sentence for Isherwood, who pleaded guilty to the offence of constructive murder.

The primary legal issues before the court were the assessment of the appropriate range of sentence for the offence of constructive murder and the consideration of mitigating factors, including the offender's plea of guilty and special circumstances. The court found that Isherwood played a principal role in the foundational crime, and the objective gravity of the offence was just below the middle range for this type of murder. Additionally, the court considered the offender's relative youth, first time in custody, and the difficulty of reintegration following lengthy incarceration as special circumstances warranting a sentence discount.

The court concluded that the appropriate sentence for Isherwood, after applying a 15% discount for the plea of guilty and considering the special circumstances, fell within the middle range of sentencing for this type of murder. The court took into account the offender's age, first-time custody status, and the challenges of reintegration after a lengthy incarceration, ultimately determining that these factors warranted a sentence reduction. The final orders of the court reflect this determination and provide for the appropriate sentence for Isherwood, taking into account both the aggravating and mitigating factors present in this case.

Orders