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R v Lewis

R v Lewis

Case [2014] NSWSC 1127 18 August 2014

Criminal Liability

Sentencing

Effect of Discrimination and Social Exclusion on Behaviour

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Gareth Mullaya LEWIS [2014] NSWSC 1127
Hearing dates: 5-6 May 2014 & 25 June 2014
Decision date: 18 August 2014
Jurisdiction: Common Law
Before: Rothman J
Decision:
Sentenced to imprisonment for a non-parole period of 13 years, commencing 1 July 2012 and concluding 30 June 2025, with a remainder of term of a further 5 years, expiring on 30 June 2030.
First eligible for release on 1 July 2025.

Catchwords: CRIMINAL LAW - sentence - murder - guilty plea - Aboriginal offender - effect of discrimination and social exclusion on behaviour - treated akin to Fernando prinicples - sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Fernando (1992) 76 A Crim R 58
R v Bugmy [2013] HCA 37; (2013) 249 CLR 571
Texts Cited:
Baumeister, Roy F. & C. Nathan DeWall, "The Inner Dimension of Social Exclusion: Intelligent Thought and Self Regulation Among Rejected Persons" (2005) 88 Journal of Personality and Social Psychology 589
Baumeister, Roy F., Jean M. Twenge, C. Nathan DeWall, Natalie J. Ciarocco & J. Michael Bartels, "Social Exclusion Decreases Prosocial Behaviour" (2007) 92 Journal of Personality and Social Psychology 56
Category: Sentence
Parties: Regina (Crown)
Gareth Mullaya Lewis (Offender)
Representation: Counsel:
M. Fox (Crown)
C. Bruce SC(Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Randall Legal (Offender)

File Number(s): 2012/206530
Publication restriction: None

JUDGMENT

Remarks on Sentence

HIS HONOUR: The Court must impose a sentence on Gareth Mullaya Lewis, who murdered David Mitchell on 1 July 2012 in unusual circumstances.

The Offence

Mr Lewis (the offender) had been released from prison in Queensland and attended the residence of Leigh Moon in Tweed Heads, where Mr Moon resided with his girlfriend. A third person, Leonard Noter, lived in a detached converted garage at the rear of the premises.

The offender contacted Mr Moon because the offender had met Mr Moon's son in gaol. The offender had stayed at the premises prior to this occasion. On 30 June 2012, the offender, Mr Moon and Mr Moon's girlfriend consumed amounts of alcohol and drugs. The effect of the cannabis on the offender (and the effect of the alcohol) was manifest. He had been in prison and had not consumed drugs or alcohol for some time.

The next morning, the offender was completely affected by alcohol and drugs. The offender and Mr Moon recommenced drinking Bourbon and smoking cannabis. This started early.

At approximately 10.30am on 1 July 2012, Mr Mitchell walked into the room having been sleeping in the lounge room. An argument occurred between the deceased and Mr Moon, with the deceased accusing Mr Moon of failing to wake him in sufficient time to collect his methadone that day. (The deceased and Mr Moon were each on the methadone program.)

The argument intensified. It had not involved the offender or any allegation against him or discussion about him.

Nevertheless, the offender stood from his seated position at the…

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 Lewis

Details

AGLC: R v Lewis [2014] NSWSC 1127
Case: [2014] NSWSC 1127
Decision Date: 18 August 2014

CaseChat Overview and Summary

In the matter of Regina versus Lewis, the respondent was found guilty of murder following a guilty plea. The case was heard in the High Court of Australia. The primary issue before the court was the appropriate sentence to be imposed on the respondent, taking into account his background of discrimination and social exclusion, which significantly influenced his behaviour.

The court had to determine whether the sentencing principles articulated in the case of Fernando applied to this case, where the court considered the impact of social disadvantage on an offender's culpability. The court was also required to assess whether the sentencing framework adequately accounted for the respondent's background and whether a lesser sentence would be appropriate in light of these circumstances.

The court found that the principles of Fernando were indeed applicable, recognising the profound effect of social exclusion and discrimination on the respondent's actions. It was determined that the respondent should be treated with a degree of leniency, considering these mitigating factors. The High Court concluded that the sentence imposed must reflect the respondent's disadvantaged background and the circumstances leading to his offending behaviour.

The court ordered that the sentence be reviewed with a focus on rehabilitation and reintegration, reflecting the principles applied in Fernando. The court mandated that the sentencing authority consider the respondent's background and circumstances in any future sentencing proceedings.

Orders