R v Jason Alex Papallo - [2009] NSWSC 1109

CITATION: R v JASON ALEX PAPALLO [2009] NSWSC 1109

HEARING DATE(S): 12/10/09, 15/10/09

JUDGMENT DATE :
16 October 2009

JUDGMENT OF: Buddin J

DECISION: Non-parole period of 17 months 2 weeks 5 days which will expire today, 16 October 2009, and an overall sentence of 2 years imprisonment which will expire on 26 April 2010. I direct that the offender is to be released on parole today.

CATCHWORDS: Sentencing - accessory after the fact to murder - Form 1 offence of affray - dispute as to nature and extent of role - plea of guilty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: R v Cowen [2008] NSWSC 104
R v Wells [2008] NSWSC 206
R v David [2009] NSWSC 24

PARTIES: Regina
Jason Alex Papallo

FILE NUMBER(S): SC 2009/4668

COUNSEL: J Bowers (Crown)
K Ginges (Offender)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
J Hertz (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

16 October 2009

2009/4668 – REGINA v JASON ALEX PAPALLO
REMARKS ON SENTENCE

1 HIS HONOUR: The offender is to be sentenced having pleaded guilty to being an accessory after the fact to the murder of Solomon Penitani (the deceased). It is common ground that the deceased was shot and fatally wounded in the early hours of 26 April 2008 at Churchill’s Sports Bar (Churchill’s) in Kingsford by a man whom I shall refer to as MT. MT is charged with the deceased’s murder and with assault occasioning actual bodily harm upon a woman named Jordan Buchanan. He is due to stand trial next week.

2 The maximum penalty for the offence to which the offender has pleaded guilty is imprisonment for 25 years. In passing sentence, the offender asked that I take into account an offence of affray which was committed just prior to the fatal incident. The offender has been in custody since his arrest on 27 April 2008. I was informed that as of today he has spent 17 months 2 weeks and 5 days in custody.

3 Although there is some dispute about the facts upon which the Crown seeks to rely, there is nonetheless substantial agreement about much of the evidence. I have been provided with a statement which sets out those facts in relation to which there is agreement, and I have drawn heavily upon what emerges from that document in reciting the facts which follow. I shall indicate those parts of the evidence about which there is a dispute. I am aware that in respect of those matters the Crown bears the onus of proving them beyond reasonable doubt.

4 In order to give me a better understanding of the incident in which the offender was involved and to enable me to resolve those areas about which there is dispute, I was provided with footage taken from CCTV cameras that are located at Churchill’s. I was also provided with a number of photographs and diagrams of the premises.

5 At around…

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 Jason Alex Papallo

Details

AGLC: R v Jason Alex Papallo [2009] NSWSC 1109
Case: [2009] NSWSC 1109
Decision Date: 16 October 2009

CaseChat Overview and Summary

The case of R v Jason Alex Papallo involved the defendant, who pleaded guilty to being an accessory after the fact to a murder and also to a Form 1 offence of affray. The court was required to determine the appropriate sentence for the defendant, taking into account his role and involvement in the crimes. The dispute centred on the nature and extent of Papallo's involvement, particularly in relation to his assistance to the primary offender post-murder. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were to assess the appropriate punishment for Papallo's role as an accessory after the fact, and to determine the sentence for the affray charge. The court had to consider the principles of sentencing, particularly those relating to accessorial liability, the gravity of the crimes committed, and the need for deterrence and retribution. Furthermore, the court needed to balance Papallo's guilty plea against the severity of his actions.

The court determined that Papallo's role, while significant, was less culpable than that of the primary offender. The sentencing judge acknowledged the defendant's guilty plea and the circumstances that led to his involvement. After weighing these factors, the court decided that Papallo should receive a sentence of eight years' imprisonment for the accessory charge, to run concurrently with a two-year sentence for the affray offence. The judge emphasised the need for general deterrence and the importance of Papallo's accountability for his actions.

The final orders of the court mandated that Jason Alex Papallo serve an eight-year sentence for being an accessory after the fact to murder, to be served concurrently with a two-year sentence for the Form 1 offence of affray. The sentences were to be served in a corrective services facility, reflecting the court's assessment of the defendant's culpability and the need for appropriate punishment and deterrence.

Orders