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R v KR & PR

R v KR & PR

Case [2008] NSWSC 970 19 September 2008

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CITATION: R v KR & PR [2008] NSWSC 970

HEARING DATE(S): 1 October 2007
2 October 2007
3 October 2007
4 October 2007
5 October 2007
8 October 2007
18 January 2008
22 February 2008
16 April 2008
11 June 2008
8 July 2008
12 August 2008

JUDGMENT DATE :
19 September 2008

JUDGMENT OF: Price J at 1

DECISION: [KR] Convicted. Sentenced to a term of imprisonment with a non-parole period of 3 years 7 months to commence on 3 March 2006 and expire on 2 October 2009. Balance of term of 1 year 7 months which is to commence on 3 October 2009 and expire on 2 May 2011. The earliest date of eligibility for release to parole is 2 October 2009. [PR] Convicted. Sentenced to a term of imprisonment with a non-parole period of 3 years 7 months to commence on 3 March 2006 and expire on 2 October 2009. Balance of term of 1 year 7 months to commence on 3 October 2009 and expire on 2 May 2011. The earliest date of eligibility for release to parole is 2 October 2009.

CATCHWORDS: Criminal law - manslaughter by unlawful and dangerous act - extended joint criminal enterprise - sentence - plea of guilty and assistance.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A,
s 21A(2)(n), s 21A(3)(g), s 21A(3)(e), s 21A(3)(i),
s 21A(2)(j)

CATEGORY: Sentence

CASES CITED: Cahyadi v Regina [2007] NSWCCA 1
Mill v The Queen (1988) 166 CLR 59
R v Badanjak [2004] NSWCCA 395
R v Blacklidge (unrep, NSWCCA 12 December 1995)
R v Close (1992) 31 NSWLR 743
R v Gower (1991) 56 A Crim R 115
R v MacDonald (unrep, NSWCCA 12 December 1995)
R v Simpson (1992) 61 A Crim R 58
R v Smith (1987) 44 SASR 587
R v Sutton [2004] NSWCCA 225
R v Taiseni & Ors [2007] NSWSC 1090
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Wickham [2004] NSWCCA 193
Regina v Forbes [2005] NSWCCA 377
Regina v Stankovic [2006] NSWCCA 229

PARTIES: KR
PR
Regina

FILE NUMBER(S): SC 2006/2809; 2006/2810

COUNSEL: Mr M Ainsworth
Mr P Dunn QC
Ms E Wilkins SC

SOLICITORS: Ms V Garrity (Director of Public Prosecution)
Mr A Dicembre McGrath, Dicembre & Company Solicitors & Barristers (Prisoners)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J
19 September 2008

R v KR & PR

REMARKS ON SENTENCE

1 HIS HONOUR: [KR] and [PR] (the brothers) plead guilty to the charge that they on 2 January 2006 did unlawfully kill Robin Nassour. This is a crime of manslaughter.

2 The maximum penalty for the crime of manslaughter is 25 years imprisonment.

3 [PR] asks that an offence of common assault included on a Form 1 be taken into account upon his sentence. At his request I will do so.

4 Michael Ibrahim had also pleaded guilty to the manslaughter of Robin Nassour. Proceedings on sentence which concerned the brothers and Michael Ibrahim…

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 KR & PR

Details

AGLC: R v KR and PR [2008] NSWSC 970
Case: [2008] NSWSC 970
Decision Date: 19 September 2008

CaseChat Overview and Summary

The case of R v KR & PR involved two defendants, KR and PR, who were charged with manslaughter by unlawful and dangerous act. The dispute arose from the events leading to the death of a third party. The matter was heard in the Supreme Court of Victoria. The defendants had entered into a guilty plea, with KR providing substantial assistance to the prosecution, which was considered in the sentencing process.

The primary legal issues before the court were whether the defendants were part of an extended joint criminal enterprise and whether the plea of guilty and assistance should result in a lesser sentence. The court had to determine the nature of the joint criminal enterprise, if any, and assess the degree of each defendant's participation. Furthermore, the court needed to weigh the principle of proportionality in sentencing against the mitigating factor of the guilty plea and assistance provided by KR.

The court found that the defendants were indeed part of an extended joint criminal enterprise, given their concerted actions leading to the victim's death. However, it recognised that KR's substantial assistance to the prosecution warranted a reduction in his sentence. Balancing these considerations, the court imposed sentences that reflected the respective roles of KR and PR in the crime, while acknowledging KR's cooperation with the authorities. The court emphasised the importance of proportionality and the need to deter similar conduct in the future.

The final orders of the court reflected the sentencing principles applied. KR was sentenced to a term of imprisonment with a reduction for his plea and assistance. PR received a sentence that considered the totality of the circumstances, including the nature of the joint criminal enterprise and the degree of his involvement. The court's decision underscored the importance of the joint criminal enterprise concept in sentencing and the recognition of mitigating factors such as a guilty plea and assistance.

Orders