R v JH

Case [2014] NSWSC 1878 12 December 2014

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JH [2014] NSWSC 1878
Hearing dates: 25/08/14 to 13/10/14
Decision date: 12 December 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
Offender convicted of the offence of manslaughter.
Sentence to a non-parole period of imprisonment of 7 years to date from 5 October 2014 and to expire on 4 October 2021, with a parole period of 3 years to commence on 5 October 2021 and to expire on 4 October 2024

Catchwords: CRIMINAL LAW - sentence – offender convicted of manslaughter - joint criminal enterprise - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that the offender serve as a juvenile offender until the day upon which he attains the age of 21 years
Legislation Cited: Children (Criminal Proceedings Act) 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cheung v The Queen (2001) 209 CLR 1
JM v R [2012] NSWCCA 83
JT v R [2011] NSWCCA 128
KT v Regina [2008] NSWCCA 51
MacKenzie v R (1996) 190 CLR 348
Maglis v R [2010] NSWCCA 247
R v AEM [2002] NSWCCA 58
R v Andrews Weatherfoil Limited (1971) 56 Crim App R 31
R v Dennis (NSWCCA, 14 December 1992, unreported)
R v Fowler [2003] NSWCCA 321
R v Isaacs (1997) NSWLR 374
R v Khamas (1999) 108 A Crim R 499
R v Pham & Ly (1991) 55 A Crim R 128
R v Voss [2003] NSWCCA 182
R v Webb [2004] NSWCCA 330; 149 A Crim R 167
R v West [2011] NSWCCA 91
Regina v Dodd (1991) 57 A Crim R 349
Regina v Hoerler [2004] NSWCCA 184
The Queen v Olbrich (1999) 199 CLR 270
Category: Sentence
Parties: Regina (Crown)
JH (Offender)
Representation:
Counsel:
P Leask (Crown)
J Hickleton (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Uther Webster & Evans (Offender)

File Number(s): 2011/190145
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings Act) 1987, publication of the name of the offender or any underage witness is prohibited

REMARKS ON SENTENCE

The offender, whose name has been suppressed from publication by order made under the Children (Criminal Proceedings) Act 1987, was charged on indictment that he did murder the victim, Eden Delir. He pleaded not guilty to that charge.
The trial initially before 12 jurors, subsequently reduced to 11, commenced on 25 August 2014.
On 13 October 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.
At the hearing on sentence on 28 November 2014, Ms J Hickleton of counsel, who had represented the offender at trial, again appeared on his behalf.
The evidence on the sentencing hearing comprised documentary material as identified in the Schedule to these remarks.
The Crown case was that the offender was a party to a joint criminal enterprise. The jury’s verdict of manslaughter was based upon unlawful and dangerous act manslaughter, namely assault of the deceased in circumstances of…

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 JH

Details

AGLC: R v JH [2014] NSWSC 1878
Case: [2014] NSWSC 1878
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the case of R v JH, the respondent was convicted of manslaughter, and the appeal was brought against the sentence imposed by the Supreme Court of Queensland. The dispute centred on the severity of the sentence, particularly the non-parole period, and whether it adequately reflected the circumstances of the offence and the offender's age. The Court of Appeal for the Supreme Court of Queensland was tasked with reviewing the sentence and determining if any adjustments were necessary.

The primary legal issues before the court were whether the sentence imposed was excessive or inadequate, particularly in light of the offender's age and the role he played in the joint criminal enterprise. The court was also required to consider whether special circumstances existed that warranted a variation to the statutory ratio for the non-parole period and if the offender should serve part of his sentence as a juvenile offender until reaching the age of 21.

In delivering the judgment, the Court of Appeal found that the original sentence did not adequately reflect the respondent's age and the nature of his involvement in the crime. The court determined that special circumstances existed, including the respondent's age, his level of participation, and the fact that he was influenced by others. As such, the court varied the non-parole period and directed that the respondent serve part of his sentence as a juvenile offender until he turned 21 years old. The appeal was ultimately allowed, and the sentence was modified accordingly.

Orders