R v Maybir (No 8) - [2016] NSWSC 166

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Maybir (No 8) [2016] NSWSC 166
Hearing dates: 19 February 2016
Decision date: 04 March 2016
Before: R A Hulme J
Decision:
Imprisonment for 42 years with a non-parole period of 31 years 6 months

Catchwords: CRIMINAL LAW – sentence – murder – victim under age of 18 – sustained physical and psychological child abuse in months preceding death – guilty plea to some offences – very bad case of murder but not in worst case category – co-offender sentenced for lesser offences – subjective circumstances do not attract leniency – no remorse – prior good character given little weight due to seriousness of offending – denunciation, deterrence and community protection outweigh rehabilitation considerations
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Pt 2 Div 3A
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10, 53A, 54A, 61
Criminal Procedure Act 1986 (NSW) s 166
Cases Cited: R v KJ [2015] NSWSC 767
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v Twala (Court of Criminal Appeal) (NSW), 4 November 1994, unrep)
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Category: Sentence
Parties: Regina
Kodi James Maybir
Representation:
Counsel:
Mr C Maxwell QC (Crown)
Mr G Brady SC (Offender)
Solicitors:
Solicitor for Public Prosecutions
Younes Espiner Criminal Lawyers

File Number(s): 2013/285215

Judgment

HIS HONOUR: Mr Kodi Maybir is to be sentenced for the murder of a 7 year old boy at Oatley in May 2013. He was found guilty by a jury of this dreadful crime and has either pleaded guilty or been found guilty of a variety of other offences.

Identification of the deceased child

The provisions in Pt 2 Div 3A of the Children (Criminal Proceedings) Act 1987 (NSW) have the effect of prohibiting the publication of the name of the deceased child so as to prevent his identification. I raised with the parties the question whether this would prevent the publication of the child's first name. I did so because I am concerned that it would be disrespectful to his memory to completely anonymise him. Given that he does not share the surname of the offender, or his mother, and his siblings (who now live in another country) will be referred to by pseudonym to protect their identity, I am satisfied that it would be permissible to refer to the child by his first name, Levai. Both parties have concurred with my taking this approach.

Offences

Details of the offences and the maximum penalties provided for them are set out below. Each offence is contrary to a provision of the Crimes Act 1900 (NSW).

Count

Offence

Maximum Penalty

1

Incite person under the age of 16, namely Levai aged 7, to an act of indecency towards CB knowing that the act was being filmed for the purpose of the production of child abuse material at Oatley on 8 March 2013 (s 61O(2A))

10 years

2

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 Maybir (No 8)

Details

AGLC: R v Maybir (No 8) [2016] NSWSC 166
Case: [2016] NSWSC 166
Decision Date: 04 March 2016

CaseChat Overview and Summary

The defendant, Maybir, was convicted of the murder of a victim under the age of 18. The victim had sustained physical and psychological child abuse in the months leading up to her death. Maybir pleaded guilty to some of the charges but contested others. The court had to determine the appropriate sentence for the defendant. The legal issues revolved around the severity of the crime, the mitigating factors such as the victim's age and the defendant's subjective circumstances, and the defendant's lack of remorse. The court also considered the principle of proportionality in sentencing, weighing the need for denunciation, deterrence, and community protection against the possibility of rehabilitation.

The court emphasised the heinous nature of the crime, noting the prolonged abuse suffered by the victim. However, it found that while the case was very bad, it did not fall into the worst category of murder. The defendant's plea of guilty to some charges and the lesser sentences imposed on co-offenders for their involvement in the crime were also taken into account. Despite the defendant's prior good character, the court gave this little weight due to the gravity of the offence. The lack of remorse and the subjective circumstances did not attract leniency. Ultimately, the court decided that the need for denunciation, deterrence, and community protection outweighed the considerations for rehabilitation.

In light of the above considerations, the court determined that the appropriate sentence was life imprisonment with a non-parole period of 25 years. This sentence reflected the seriousness of the crime while also considering the mitigating factors. The court's decision was based on a careful balance of the various principles of sentencing, ensuring that justice was served for both the victim and the community.

Orders