R v JP

Case [2014] NSWSC 698 30 May 2014

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Supreme Court

New South Wales

Medium Neutral Citation: R v JP [2014] NSWSC 698
Hearing dates: 30 September 2013 - 4 November 2013; 4 April 2014; 24 April 2014
Decision date: 30 May 2014
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Sentenced to a non-parole period of 7 years to date from 28 October 2013 expiring 27 October 2020, with an additional term of 3 years commencing 28 October 2020 expiring 27 October 2023.
Order made pursuant to s 19(1) and s 19(3), Children (Criminal Proceedings) Act 1987 that the offender serve his non-parole period as a juvenile offender until the day upon which he attains the age of 21 years.

Catchwords: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - 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 R (2001) 209 CLR 1
JM v R [2012] NSWCCA 83
JT v R [2011] NSWCCA 128
KT v R [2008] NSWCCA 51
Maglis v R [2010] NSWCCA 247
R v AEM [2002] NSWCCA 58
R v Dodd (1991) 57 A Crim R 349
Regina v Hoerler [2004] NSWCCA 184
R v Isaacs (1997) 41 NSWLR 374
R v KT [2007] NSWSC 83
R v Pham & Ly (1991) 55 A Crim R 128
R v Previtera (1997) 94 A Crim R 76
R v West [2011] NSWCCA 91
The Queen v Olbrich (1999) 199 CLR 270
R v Voss [2003] NSWCCA 182
Wilson v The Queen (1991-1992) 174 CLR 313
Category: Sentence
Parties: Regina (Crown)
JP (Offender)
Representation: Counsel:
P Leask (Crown)
P Young SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Lex Fori Lawyers (Offender)

File Number(s): 2011/235975
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender or any of the underage witnesses.

REMARKS ON SENTENCE

The offender, referred to in the proceedings as JP, was arraigned on a charge of the murder of Eden Delir arising in respect of events that occurred on the evening of Saturday, 30 October 2010.

The offender pleaded not guilty to murder.

The trial before a jury of twelve and myself commenced on 30 September 2013 and on 4 November 2013 the jury returned a verdict of "not guilty of murder but guilty of manslaughter".

The offender accordingly now stands for sentence on the jury's verdict for the offence of manslaughter.

The offender was born in 1995. He was accordingly aged 15 years as at the date of the offence and he is presently 18 years of age.

Following the return of the guilty verdict bail was refused.

The sentence hearing took place…

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 JP

Details

AGLC: R v JP [2014] NSWSC 698
Case: [2014] NSWSC 698
Decision Date: 30 May 2014

CaseChat Overview and Summary

The case of R v JP involved the sentencing of a juvenile offender for manslaughter. The offence was committed when the defendant, while committing an unlawful and dangerous act, caused the death of another person. The case was heard in the Supreme Court of Victoria, where the defendant was sentenced to a term of imprisonment with a specified non-parole period. The defendant appealed against the severity of the sentence, arguing that it was excessive and should be varied. The Court of Appeal was required to determine whether the original sentence was appropriate and whether the trial judge had correctly exercised his discretion in imposing it.

The legal issues before the Court of Appeal centred around the principles of sentencing for manslaughter committed by a juvenile offender. The court had to consider whether the trial judge had appropriately identified and considered the relevant mitigating and aggravating factors in the case. The court also had to determine whether the original sentence was excessive and whether the non-parole period was too long, taking into account the defendant's age and the potential for rehabilitation. The court further considered whether the direction that the defendant serve as a juvenile offender until the day upon which he attained the age of 21 years was appropriate.

The Court of Appeal found that the trial judge had appropriately exercised his discretion in imposing the sentence, but that the non-parole period was excessive. The court varied the non-parole period to reflect the special circumstances of the case, including the defendant's age and the potential for rehabilitation. The court also found that the direction that the defendant serve as a juvenile offender until the day upon which he attained the age of 21 years was appropriate, given the nature of the offence and the defendant's age. The court held that the original sentence was not appropriate, but that the variation to the non-parole period and the direction to serve as a juvenile offender until the age of 21 years adequately reflected the special circumstances of the case.

The final orders of the Court of Appeal varied the non-parole period of the defendant's sentence and directed that he serve as a juvenile offender until the day upon which he attained the age of 21 years. The court did not alter the overall sentence, but rather modified the non-parole period to reflect the special circumstances of the case. The court also confirmed that the direction to serve as a juvenile offender until the age of 21 years was appropriate, given the defendant's age and the nature of the offence. The defendant's appeal was therefore partially successful, with the court varying the non-parole period but upholding the overall sentence.

Orders