R v Lynch - [2010] NSWSC 952

CITATION: R v Lynch [2010] NSWSC 952

HEARING DATE(S): 5, 8 August 2010; 13, 14 September 2010

JUDGMENT DATE :
15 September 2010

JUDGMENT OF: Studdert AJ

DECISION: Brendon Arron Mark Henry LYNCH, for the manslaughter of Adam James Flarrety I sentence you to imprisonment for a non-parole period of 5 years commencing on 22 March 2009 and to expire on 21 March 2014, and a balance of term of 2 years thereafter to expire on 21 March 2016. The first date upon which you are to be eligible for release on parole is 21 March 2014.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, Part 4

CATEGORY: Sentence

CASES CITED: R v Alexander (1994) 78 ACR 141
R v Berrier [2006] NSWSC 1421
R v Blacklidge (NSWCCA, unreported, 12 December 1995)
R v Bollen (1998) 99 ACR 510
R v Borkowski [2009] NSWCCA 102
R v Bullock [2005] NSWSC 1071
R v Cardoso (2003) 137 ACR 535
R v Forrest [2008] NSWSC 301
R v Hill (1981) 3 ACR 397
R v Marlow [2003] NSWSC 1130
R v McDonald (NSWCCA, unreported, 12 December 2005)
R v Moffitt (1990) 20 NSWLR 114
R v Mohamad Ali [2005] NSWSC 334
R v Morabito (1992) 62 ACR 82
R v Pello [2001] NSWSC 650
R v Previtera (1997) 94 ACR 76
R v Tobar (2004) 150 ACR 104
R v Underhill (unreported decision of the Court of Criminal Appeal, 9 May 1986)
R v Walsh [2004] NSWSC 111
R v Welsh (2004) 142 ACR 140

PARTIES: Regina
Brendon Arron Mark Henry Lynch

FILE NUMBER(S): SC 2009/00039475

COUNSEL: Crown – Mr Lee Carr (Crown Prosecutors’ Newcastle)
Offender - Ms Dina Yehia (Office of the Public Defender)

SOLICITORS: Crown - Nikolina Rastovic (Solicitor, ODPP NSW, Newcastle)
Offender - Mr Ross Doyle (Ross Doyle Legal, Kempsey, NSW)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT AJ

WEDNESDAY 15 SEPTEMBER 2010

2009/00039475 Regina v Brendon Arron Mark Henry LYNCH

REMARKS ON SENTENCE

1 HIS HONOUR: The offender Brendon Arron Mark Henry LYNCH is before the Court today for sentence for the crime of manslaughter.

2 The victim of the crime was Adam James Flarrety. He died from a stab wound inflicted by the offender at Stuarts Point on 21 March 2009. The stabbing followed many hours of drinking in which the deceased, the offender and a number of other persons had participated at Stuarts Point.

3 The Court was presented with a statement of agreed facts on which I draw to record the following description as to what occurred leading up to the stabbing:

“In the early hours of Saturday 21 March 2009 the offender stabbed Adam FLARRETY in the stomach. Mr. FLARRETY died as a result of the stab wound. The incident occurred in Fourth Avenue, Stuarts Point.

The deceased was born on 16 May 1987 and was aged 21 years and 10 months at the time of his death. In November…

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 Lynch

Details

AGLC: R v Lynch [2010] NSWSC 952
Case: [2010] NSWSC 952
Decision Date: 15 September 2010

CaseChat Overview and Summary

In this case, Brendon Arron Mark Henry Lynch was sentenced for the manslaughter of Adam James Flarrety. The incident occurred on 21 March 2009 at Stuarts Point, where the offender stabbed the deceased following a night of heavy drinking with friends. The offender pleaded guilty to manslaughter on the basis of provocation, and the Crown accepted this plea. The court had to determine the appropriate sentence for manslaughter, considering the objective and subjective factors involved. The court assessed the degree of provocation offered by the deceased, the time between the provocation and the loss of self-control by the offender, and the degree of violence displayed by the offender. The court found the degree of provocation to be significant but not great, the lapse of time between the provocation and loss of self-control to be short, and the degree of violence by the offender to be excessive. The court also considered various mitigating factors, such as the offender's good character, lack of criminal history, prospects for rehabilitation, and remorse shown.

After weighing all the relevant factors, the court sentenced Brendon Arron Mark Henry Lynch to imprisonment for a non-parole period of 5 years, commencing on 22 March 2009 and expiring on 21 March 2014, with a balance of term of 2 years to expire on 21 March 2016. The offender would be eligible for release on parole on 21 March 2014.

Orders