R v Mundene - [2007] NSWSC 355

CITATION: R v Mundene [2007] NSWSC 355
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 02/03/2007, 05/04/2007

JUDGMENT DATE :
19 April 2007

JUDGMENT OF: Howie J at 1

DECISION: The offender is convicted and sentenced to a term of imprisonment with a non-parole period of 3 years 9 months and a balance of term of 3 years. The non-parole period is to date from 15 October 2006 and expire on 14 July 2010 the date upon which the offender is eligible to be released to parole. The balance of term commences on 15 July 2010 and expires on 14 July 2013.

CATCHWORDS: Criminal Law - Sentence - manslaughter - death of baby by shaking.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s21A(3)(j)

CASES CITED: R v Callaghan v R [2006] 160 A Crim R 145
R v Monroe [2003] 148 A Crim R 478
R v Hoerler [2004] NSWCCA 184

PARTIES: Regina v Keith Herbert Mundene

FILE NUMBER(S): SC 2006/1713

COUNSEL: P. Barnett - Crown
P. Winch - Offender

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Offender

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

HOWIE J

THURSDAY 19 APRIL 2007

2006/1713 REGINA v KEITH HERBERT MUNDENE
REMARKS ON SENTENCE

1 HIS HONOUR: On 2 March 2007 the offender was arraigned before me on an indictment alleging that he murdered a child aged seven months. He pleaded not guilty to murder but guilty to manslaughter and the Crown accepted this plea in full satisfaction of the indictment. It was accepted by the parties that the basis of the manslaughter was an unlawful and dangerous act committed by the offender when he shook the child causing fatal injuries. The injuries were inflicted on 5 July 2005 and the child died the next day in hospital. The offender is now to be sentenced for that offence which carries a maximum penalty of imprisonment for 25 years.

2 A statement of facts was tendered as the basis upon which I am to sentence the offender. I was not given any other statements or material from the Crown brief. The facts can be summarised as follows. In October 2004 the offender became involved in a relationship with Ms Simon, the child's mother, who at that time was pregnant to another man. On 17 November 2004 Ms Simon gave birth to the child, the victim in this matter.

3 On 14 November 2004 the offender was taken into custody for an offence of dishonesty. He remained in custody serving a sentence until 13 June 2005. During his period of incarceration the relationship with Ms Simon continued by letters, telephone calls and occasional visits by her to the gaol. Throughout these communications the offender referred to the child as his son and made enquiries about his health and welfare.

4 Shortly before the offender's release, Ms Simon went to live at Taree with the child.…

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 Mundene

Details

AGLC: R v Mundene [2007] NSWSC 355
Case: [2007] NSWSC 355
Decision Date: 19 April 2007

CaseChat Overview and Summary

The matter of R v Mundene involved a defendant who was charged with the manslaughter of his infant son by shaking. The case was heard in the Supreme Court of Victoria. The defendant had pleaded guilty to the charge and the primary issue for the court was the appropriate sentence to impose.

The legal issue before the court was determining the appropriate penalty for the offence of manslaughter by shaking an infant, which resulted in the death of the child. The court had to consider the principles of sentencing in relation to manslaughter, including the nature and circumstances of the offence, the defendant's culpability, and the need for deterrence and rehabilitation.

The court found that the offence was particularly egregious given the vulnerability of the victim and the level of force used by the defendant. The court emphasised the importance of protecting children and the need for appropriate punishment and deterrence. After considering various aggravating and mitigating factors, the court determined that the appropriate sentence was one of imprisonment. The final orders of the court were that the defendant be sentenced to a term of imprisonment with specific parole conditions to ensure the safety of the community and the protection of potential future victims.

Orders