R v JK - [2012] NSWSC 710

Supreme Court

New South Wales

Medium Neutral Citation: R v JK [2012] NSWSC 710
Hearing dates: 18 May 2012
Decision date: 29 June 2012
Before: Harrison J
Decision:
For the offence of attempted aggravated break, enter and steal with intent the offender is sentenced to a term of imprisonment of 2 years commencing on 15 January 2012 and expiring on 14 January 2014. For the murder of Colin Ferrier the offender is sentenced to a term of imprisonment of 15 years with a non-parole period of 10 years commencing on 15 October 2012 and expiring on 14 October 2022 and a balance of term of 5 years commencing on 15 October 2022 and expiring on 14 October 2027.

Catchwords: SENTENCE - murder - constructive murder - deceased killed when struck by car driven by offender in course of fleeing scene of attempted break and enter - no intention to kill or inflict grievous bodily harm
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
McDonald v R (Unreported, NSWCCA, 18 August 1994)
R v Bollen (1998) 99 A Crim R 510
R v Borokowski [2009] NSWCCA 102
R v Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Hooker [1999] NSWSC 896
R v Jacobs and Mehajer [2004] NSWCCA 462
R v JB [1999] NSWCCA 93
R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Previtera (1997) 94 A Crim R 76
R v Wright (1997) 93 A Crim R 48
Category: Sentence
Parties: Crown
JK (Offender)
Representation: Counsel:
P Barnett SC (Crown)
D Yehia SC (Offender)
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2010/151791
Publication restriction: Offender only to be identified by pseudonym

REMARKS ON SENTENCE

HIS HONOUR: The offender JK was committed for trial on 20 September 2011. Upon arraignment on 3 February 2012 the offender pleaded guilty to the murder of Colin Ferrier on 16 June 2010 at Buronga in the State of New South Wales contrary to s 18 of the Crimes Act 1900. He appears before me to be sentenced for that offence for which the maximum penalty is life imprisonment. He has also pleaded guilty to one count of attempted aggravated break, enter and steal with intent contrary to s 113(2) of that Act. He also appears before me to be sentenced for that offence for which the maximum penalty is 14 years imprisonment.

I am also asked to take into account the following matters relevant to these offences on two Forms 1:

(a) Larceny of personal property contrary to s 117 of the Act.

(b) Three counts of destroying property by fire whilst in company contrary to s 195(1A)(b) of the Act.

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 JK

Details

AGLC: R v JK [2012] NSWSC 710
Case: [2012] NSWSC 710
Decision Date: 29 June 2012

CaseChat Overview and Summary

In the case of R v JK, the accused was convicted of murder for causing the death of a deceased person who was struck by a car while the accused was driving in the course of fleeing the scene of an attempted break and enter. The matter was heard in the Supreme Court of South Australia. The legal issues at hand were whether the accused's actions constituted constructive murder and if the accused could be held responsible for the death of the deceased person despite the absence of an intention to kill or cause grievous bodily harm.

The court considered the principles of constructive murder, which hold that a person can be held responsible for a death caused by their unlawful act if the death was a foreseeable consequence of that act. The court found that the accused's actions in attempting to break and enter, and subsequently fleeing the scene in a manner that resulted in the death of the deceased, constituted an unlawful act that led to the death. The court held that it was a foreseeable consequence of the accused's actions that someone could be killed in the course of fleeing, even if the accused did not intend to cause death or grievous bodily harm. Therefore, the court concluded that the accused's actions constituted constructive murder.

The Supreme Court of South Australia sentenced the accused to a term of imprisonment. The court found that the nature and circumstances of the offence warranted a significant penalty, but also took into account the lack of intent to kill or cause grievous bodily harm. The court considered the impact of the crime on the victim's family and the need for deterrence and rehabilitation in determining the appropriate sentence.

Orders