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R v James Dean-Willcocks

R v James Dean-Willcocks

Case [2012] NSWSC 107 24 February 2012

Discount for guilty plea

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v James DEAN-WILLCOCKS [2012] NSWSC 107
Hearing dates: 26-28/10/2011; 31/10/2011; 01-04/11/2011; 7/11/2011, 03/02/2012
Decision date: 24 February 2012
Before: Garling J
Decision:
(a) I sentence you to a term of imprisonment without parole of 4 years to commence on 10 October 2009 and to conclude on 9 October 2013.
(b) I sentence you to a balance of term of 3 years and 6 months, to conclude on 9 April 2017.
(c) The first day on which you will be eligible for release from custody is 9 October 2013.

Catchwords: CRIMINAL LAW - Sentence - Manslaughter - Random and sustained attack on stranger in street - Fatal brain injury when head struck footpath during tackle - Intoxicated offender - Likely blood alcohol concentration of 0.3 - No memory of attack - Conduct racially motivated - Vulnerable elderly peripatetic victim - Attack unplanned - No significant prior convictions - Previous good character - Remorse - Good prospects of rehabilitation - Alcohol problems being addressed - Strong family support - Employment prospects - Discount for guilty plea - Special circumstances for varying statutory ratio for non-parole period
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Case Conferencing Trial Act 2008
Cases Cited: APT v R [2009] NSWCCA 230
Cheung v The Queen [2001] HCA 67; 209 CLR 1
KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
Pearce v The Queen [1988] HCA 57; 194 CLR 610
R v Adamson [2002] NSWCCA 349; 132 A Crim R 511
R v AJC [2010] NSWCCA 168
R v Blacklidge (NSWCCA, 12 December 1995, unreported)
R v Borkowski [2009] NSWCCA 102
R v Carroll [2008] NSWCCA 218
R v Edwards (1996) 90 A Crim R 510
R v Isaacs (1997) 41 NSWLR 374
R v Johnson [2003] NSWCCA 129
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Oinonen [1999] NSWCCA 310
R v Pham; R v Ly (1991) 55 A Crim R 128
R v Previtera (1977) 94 A Crim R 76
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Category: Sentence
Parties: The Crown
James Dean-Willcocks
Representation: T Thorpe (Crown)
P Boulten SC (Offender)
Solicitor for Public Prosecutions (Crown)
Giddy & Crittenden (Offender)

File Number(s): 2009/226038
Publication restriction: Nil

Judgment

On 10 October 2009, James Dean-Willcocks killed Magno Alvarado in Elouera Road, Cronulla, NSW.

He did so, having encountered him randomly on the footpath of Elouera Road, by chasing and assaulting him and then finally, by pursuing him along the footpath, tackling…

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 James Dean-Willcocks

Details

AGLC: R v James Dean-Willcocks [2012] NSWSC 107
Case: [2012] NSWSC 107
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the matter of R v James Dean-Willcocks, the appellant was convicted of manslaughter following a brutal and unprovoked attack on an elderly man in the street. The victim, who was peripatetic and vulnerable, suffered a fatal brain injury when his head struck the footpath after being tackled by the appellant. The incident occurred while the appellant was heavily intoxicated, with an estimated blood alcohol concentration of 0.3, and he had no memory of the attack. The court was required to determine an appropriate sentence, taking into account the random and sustained nature of the attack, its racially motivated aspect, and the appellant's background and prospects for rehabilitation.

The legal issues before the court included the appropriate weight to be given to the mitigating factors, such as the appellant's intoxication, lack of memory, good character, and prospects for rehabilitation. The court also had to consider the severity of the offence, the vulnerability of the victim, and the need for deterrence and denunciation. In assessing the appropriate sentence, the court had to balance the circumstances of the offence against the appellant's personal circumstances and prospects for rehabilitation.

In delivering the judgment, the court found that while the offence was of high severity, the appellant's personal circumstances and prospects for rehabilitation warranted a degree of leniency. The court accepted that the appellant's intoxication and lack of memory were significant mitigating factors, as was his remorse and good prospects of rehabilitation, including his efforts to address his alcohol problems and strong family support. The court also found that the attack was unplanned and that the appellant had no significant prior convictions. As a result, the court varied the statutory non-parole period and imposed a sentence that reflected both the seriousness of the offence and the appellant's personal circumstances. The final orders included a sentence of imprisonment with a non-parole period, reflecting the court's consideration of all relevant factors.

Orders