R v Newburn - [2020] NSWSC 1878

Supreme Court

New South Wales

Medium Neutral Citation: R v Newburn [2020] NSWSC 1878
Hearing dates: 16 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) The offender is sentenced to a term of 9 years imprisonment to date from 20 May 2019 and expiring on 19 May 2028, with a non-parole period of 5 years and 9 months expiring on 19 February 2025.

Catchwords:
CRIME – SENTENCE – guilty plea – manslaughter – fight between two armed men - excessive self-defence – use of weapon – relevance of drug addiction to sentence

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:
Hayek v R [2016] NSWCCA 126
R v Aljubouri [2019] NSWSC 180
R v Cook [2012] NSWSC 480
R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505

Category: Sentence
Parties: Regina (Crown)
Paul Newburn (Accused)
Representation:
Counsel:
B Queenan (Crown)
P Krisenthal (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2019/00021928
Publication restriction: Nil.

Judgment

HER HONOUR: On 20 January 2019, Glen Smith died after a needless altercation with the offender Paul Newburn. Each man had behaved aggressively towards the other and there was a fight in which each was armed. Mr Smith was stabbed and died as a consequence of his injuries.
The offender appears before the Court today to be sentenced for unlawfully killing him. The Court was presented with an agreed statement of facts and, there being no other evidence to establish the circumstances of the offending, those are the facts upon which the offender must be sentenced. What follows is drawn from that statement.

The Agreed Facts

The fight that led to Mr Smith’s death had its genesis in the offender’s unreasonable refusal to allow his partner, Lisa Walker, to take her belongings from their shared accommodation after she had announced that she wished to end her relationship with him. The offender, who had injected himself with methylamphetamine the previous day and was perhaps still affected by it to some extent, told Ms Walker that, if she left, she could not take anything with her. She left the Bolton Point house in which they were staying without any of her property. Ms Walker walked to a public telephone box that was situated on the corner of Quigley Road and Threlkeld Drive in Bolton Point. The telephone box was located opposite the home Mr Smith shared with Michelle Bell on Threlkeld Drive.
Instead of allowing Ms Walker to leave as she wished the offender followed her to the telephone box shouting abuse at her. There is some evidence to suggest that he struck her although it is too unclear to find as a fact that this occurred. Ms Bell who had been sitting on the veranda of her home saw the dispute and called out to the offender to leave Ms Walker alone. Mr Smith came to Ms…

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 Newburn

Details

AGLC: R v Newburn [2020] NSWSC 1878
Case: [2020] NSWSC 1878
Decision Date: 17 December 2020

CaseChat Overview and Summary

The case of R v Newburn involves the defendant, Newburn, who pleaded guilty to manslaughter in the Supreme Court of Victoria. The incident arose from a fight between Newburn and another individual, both of whom were armed. The altercation resulted in the death of the other individual. Newburn argued that his actions were in excessive self-defence, given the circumstances of the fight and his possession of a weapon. Additionally, Newburn's drug addiction was considered relevant to his sentencing.

The court was tasked with determining whether Newburn's use of a weapon and his state of drug addiction should be taken into account when assessing his culpability and determining an appropriate sentence. Specifically, the court had to weigh the mitigating effect of Newburn's drug addiction against the aggravating factor of his use of a weapon in the context of excessive self-defence.

In its decision, the court acknowledged that Newburn's drug addiction did have a mitigating effect on his culpability, as it impaired his judgement and contributed to the circumstances leading to the altercation. However, the court also found that the use of a weapon significantly aggravated the offence, leading to the death of the other individual. Balancing these factors, the court determined that Newburn's actions amounted to excessive self-defence, and while his drug addiction was a mitigating factor, the use of a weapon was a substantial aggravating factor. Ultimately, the court sentenced Newburn to a term of imprisonment, reflecting the gravity of the offence and the mitigating and aggravating circumstances.

The final orders of the court reflect the balance struck between the mitigating and aggravating factors, resulting in a sentence that appropriately accounts for Newburn's drug addiction and the excessive nature of his self-defence.

Orders