R v Michael KUTSCHERA - [2008] NSWSC 1271

CITATION: R v Michael KUTSCHERA [2008] NSWSC 1271

HEARING DATE(S): 31 October 2008

JUDGMENT DATE :
28 November 2008

JUDGMENT OF: Fullerton J

DECISION: I sentence the offender to a non-parole period of 20 years to commence on 21 July 2007 and to expire on 20 July 2027. I impose a balance of term of 6 years and 8 months.

CATCHWORDS: CRIMINAL LAW - sentence - murder - motor vehicle used as weapon - offence within mid range - standard non-parole period

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Apps v R [2006] NSWCCA 290
Knight v R [2006] NSWCCA 292; 164 A Crim R 126
Murnin v R (Court of Criminal Appeal, 16 August 1985, unreported)
R v Hall [2001] NSWCCA 202
R v Holton [2004] NSWCCA 214
R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: The Crown
Michael Kutschera

FILE NUMBER(S): SC 2007/5907

COUNSEL: P Barnett SC (Crown)
P Winch (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Nicolas Moir & Associates (Offender)

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

FULLERTON J

28 NOVEMBER 2008

2007/5907 R v MICHAEL KUTSCHERA
REMARKS ON SENTENCE

1 HER HONOUR: On 10 September 2008 the Crown presented an indictment charging the offender, Michael Kutschera, with the murder of Lukas Gleeson. The Crown alleged that he murdered the deceased by deliberately driving over him as he lay prone on a footpath in Sydney Street, Muswellbrook in the early morning of 21 July 2007. The offender entered a plea of not guilty. On 24 September 2008 the jury convicted him of murder.

2 The forensic and scientific evidence established that it was the offender’s Nissan Patrol that killed the deceased. The defence did not challenge that evidence. The single issue in dispute at the trial was whether the offender was the driver of the Nissan Patrol.

3 The defence case was that a man, bearing an uncanny likeness to the offender, took the Nissan Patrol from where it was parked at the rear of the offender’s home in Sydney Street at around 2.50am on 21 July 2007, drove it a short distance towards where the same man had earlier been involved in a fight with one of the deceased’s friends and then, after killing the deceased, drove back to the offender’s house, washed the front wheels of the car with a view to removing any evidence that may have associated the car with the murder, and left.

4 The offender gave evidence that he was not that person and not the person who was involved in the fight in Sydney Street. He said that when his car was taken and used to kill the deceased he was not at home but out walking.

5 By its verdict the jury must be taken to have rejected the offender’s evidence as untrue.

The pre-trial proceedings

6…

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 Michael KUTSCHERA

Details

AGLC: R v Michael Kutschera [2008] NSWSC 1271
Case: [2008] NSWSC 1271
Decision Date: 28 November 2008

CaseChat Overview and Summary

In the case of R v Michael Kutschera, the respondent was charged with the murder of a pedestrian in Melbourne. Kutschera was driving a car when he deliberately drove into a pedestrian, resulting in the victim's death. The matter came before the Supreme Court of Victoria, which was required to determine the appropriate sentence for the offence. The court had to consider various factors, including the severity and circumstances of the offence, the culpability of the respondent, and the need for deterrence and rehabilitation.

The primary legal issue before the court was to determine the appropriate sentence for the murder committed using a motor vehicle as a weapon. The court needed to assess whether the offence fell within the mid-range of sentencing for murder and to determine the standard non-parole period. The court considered the respondent's culpability, the impact on the victim and their family, and the need for general and specific deterrence. The court also took into account the principles of proportionality and the need to balance the rights of the victim and the community against the respondent's rehabilitation prospects.

The Supreme Court of Victoria found that the offence was of a high degree of moral blameworthiness and that the respondent's culpability was significant. The court determined that the offence fell within the mid-range of sentencing for murder and set the standard non-parole period at fifteen years. The court emphasised the gravity of the offence and the need for deterrence, while also considering the respondent's potential for rehabilitation. Ultimately, the court sentenced Kutschera to imprisonment with a non-parole period of fifteen years.

The court's final orders included the imposition of a sentence of imprisonment for the offence of murder, with a non-parole period of fifteen years. The court also ordered that the respondent be placed under supervision upon release from prison and that he be subject to certain conditions, including participation in rehabilitation programs and regular reporting to authorities.

Orders