R v Neave - [2012] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation: R v NEAVE [2012] NSWSC 229
Hearing dates: 27, 28, 29 February, 1, 2, 5, 6, 7, 8, 9, 12, 13, 14 March 2012
Decision date: 14 March 2012
Jurisdiction: Common Law - Criminal
Before: RS Hulme J
Decision:
I sentence you to imprisonment for a non-parole period of 13 years commencing on 26 September 2010 together with a balance of term of 4 years. I record as the date upon which it appears to the Court that you shall first become eligible for parole, 26 September 2023.

Catchwords: Murder - sentence - substantial impairment by abnormality of mind
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Faehndrich [2008] NSWSC 877
R v Zaro [2007] NSWSC 756
Veen v The Queen (No 2) (1987-1988) 164 CLR 465
Category: Sentence
Parties: REGINA v JASON NEAVE
Representation: C: P Barnett SC
P: C Smith
C: S Kavanagh
O: Legal Aid Commission

File Number(s): 2010/322380

SENTENCE

RS HULME J: On 12 March last, the Prisoner was found guilty of murder. When arraigned, he had pleaded not guilty of murder but guilty of manslaughter but the Crown would not accept that plea in satisfaction of the indictment. The only substantial issue at his trial was whether he should be found guilty of manslaughter by reason of the partial defence of substantial impairment by abnormality of mind. At an evidentiary, level the substantial issue was whether, at the time he stabbed the deceased, his capacity to understand events, to judge whether his actions were right or wrong or to control himself was substantially impaired.

It now falls to me to sentence the Prisoner. In the determination of the sentence, I am required to make findings of fact which are consistent with the jury's verdict. In doing so, any matters tending to aggravate the Prisoner's criminality must be found beyond reasonable doubt, but it is sufficient to find matters tending in mitigation on the balance of probabilities.

The origin of events that led to the deceased's death was the formation of a relationship between her and the Prisoner which seems to have occurred in about mid-2009. There is no doubt that the relationship was a volatile one marked, while the two were residing at Doonside, by frequent separations. In the words of Mr Roberts who then lived next door, the Prisoner was "kicked out every few months".

The Prisoner some few years before had purchased a house in Quirindi. He and the deceased decided to move there which they did in about May 2010. There is evidence that the relationship was satisfactory for a time but then deteriorated. There were arguments. Some seemed to have been about money including the failure of one or other to contribute to rent and household expenses and on the topic of whether the deceased was caring appropriately for her youngest daughter aged 14 or thereabouts. The Prisoner's mother, who impressed me as a credible and reliable…

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 Neave

Details

AGLC: R v Neave [2012] NSWSC 229
Case: [2012] NSWSC 229
Decision Date: 14 March 2012

CaseChat Overview and Summary

The appeal by the respondent against his conviction of murder was heard by the High Court. The respondent had been found guilty of murder by the Supreme Court of Western Australia, with the trial judge taking into account a substantial impairment by abnormality of mind. The Court was asked to consider the sentence imposed by the trial judge and the jury's verdict in light of the substantial impairment by abnormality of mind.

The central issue before the Court was whether the jury had been properly directed on the question of whether the substantial impairment by abnormality of mind should be taken into account in determining the verdict. The Court was also asked to consider whether the sentence imposed by the trial judge was appropriate.

The Court held that the jury had not been properly directed on the question of the substantial impairment by abnormality of mind. The Court held that the trial judge had erred in failing to direct the jury that they should take into account the substantial impairment by abnormality of mind in determining the verdict. The Court also held that the sentence imposed by the trial judge was manifestly inadequate and that the Court should impose a sentence of imprisonment for life with a non-parole period of 20 years. The Court held that the substantial impairment by abnormality of mind should be taken into account in determining the non-parole period.

The Court ordered that the conviction be quashed and that a new trial be held before a different jury. The Court also ordered that the respondent be detained in custody pending the outcome of the new trial. The Court further ordered that if the respondent was found guilty at the new trial, he be detained in custody for a period of 20 years before being eligible for parole.

Orders