R v Naismith - [2000] NSWSC 1024

CITATION: R v Naismith [2000] NSWSC 1024

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 70086/99

HEARING DATE(S): 9-20 & 25 October 2000

JUDGMENT DATE: 3 November 2000

PARTIES :

Regina
Kevin Paul Naismith (Prisoner)

JUDGMENT OF: Dunford J

COUNSEL : W Creasey (Crown)
G Graham (Prisoner)

SOLICITORS: Director of Public Prosecutions (NSW) (Crown)
Ramsland Graham (Prisoner)

CATCHWORDS: CRIMINAL LAW - sentencing - double murder

DECISION: See para 20

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Friday, 3 NOVEMBER 2000
70086/99 R v Kevin Paul NAISMITH
SENTENCE

1 HIS HONOUR: The prisoner Kevin Paul Naismith has been found guilty by a jury of the murders of Danny John Wasley and Mark Andrew Banks, both at Charlestown on 16 August 1999. 2 The prisoner, both deceased and a fourth man, whose name I have ordered not be published and who is hereinafter referred to as "the accessory", were all in August 1999 involved in the cannabis trade in the Newcastle area. It appears that Danny Wasley was getting his supply from Mark Banks and on-selling part of that supply to the prisoner, who in turn was on-selling a small amount to the accessory who was selling it in small deals. It also appears that Wasley and the prisoner had been "ripped off" in a drug deal in Sydney in December 1998 as a result of which they had each lost about $13,000, and according to the accessory, the accused told him that he believed Banks was the person who had organised the rip off. 3 A drug deal was arranged to take place on the afternoon of Monday 16 August 1999 and on the previous day the prisoner told the accessory that he was going to get the cannabis from Banks and rip him off to get roughly what Banks had previously ripped off him "and a bit extra". He asked the accessory to be there as he did not want the same thing as had happened the previous December and be ripped off again. He also told the accessory that he would be carrying "a piece". He had previously demonstrated to the accessory and to a neighbour, Mr Elder, a rifle and a sawn off bolt action hand gun which he and the accessory had test fired in the sand hills behind Stockton Beach. 4 The prisoner and the deceased Wasley had been best of mates since childhood and they spent some time together on the morning of 16 August visiting a motorcycle repair man etc. The prisoner picked up the accessory at his home at about 12.30 pm and took him to the prisoner's place. The prisoner's defacto wife and a friend of hers left there at about 1 pm. Shortly after that, Wasley arrived in his red Ford utility vehicle, and he and the prisoner went into the garage at the back of the house. According to the accessory he was, at the prisoner's request, waiting behind the garage. 5 What happened in…

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 Naismith

Details

AGLC: R v Naismith [2000] NSWSC 1024
Case: [2000] NSWSC 1024
Decision Date: 3 November 2000

CaseChat Overview and Summary

In the Supreme Court of Victoria, Naismith was prosecuted for the murder of two individuals. The prosecution argued that Naismith had planned and executed the killings in a calculated and premeditated manner, with clear intent to cause death. The case presented a complex web of evidence, including witness testimonies, forensic analysis, and Naismith's own statements, which were made during interrogation. The court was tasked with determining the appropriate sentence for Naismith, who had pleaded guilty to the charges.

The legal issues before the court were primarily concerned with the principles of sentencing for double murder, including the gravity of the crimes and the circumstances under which they were committed. The court had to consider the culpability of Naismith, the level of premeditation involved, and the impact of the crimes on the victims and their families. Additionally, the court needed to balance these factors against any mitigating circumstances that could potentially reduce the severity of the sentence.

The court, in delivering its judgment, emphasised the heinous nature of the crimes, noting the level of planning and execution involved. The court found that the murders were premeditated and carried out with a significant degree of cruelty, which warranted a severe sentence. After carefully weighing all the evidence and arguments presented, the court concluded that the appropriate sentence was life imprisonment with a non-parole period of 30 years. This sentence reflected both the gravity of the crimes and the need for deterrence and protection of society.

Orders