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R v NK (No 3)

R v NK (No 3)

Case [2015] NSWSC 1257 3 September 2015

Aggravated & Exemplary Damages

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v NK (No 3) [2015] NSWSC 1257
Hearing dates: 20-21 August 2015
Date of orders: 03 September 2015
Decision date: 03 September 2015
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Sentenced to an aggregate non-parole period of 15 years and 9 months commencing on 1 March 2014 and expiring on 30 November 2029. There will be a balance of parole of 5 years and 3 months commencing on 1 December 2029 and expiring on 28 February 2035.

Catchwords: CRIMINAL LAW – SENTENCE – gangland violence – home invasion – multiple shooting offences – gun crime – contract killing –murder – whether most extreme case – whether maximum penalty appropriate – duress – assistance to authorities – subjective case – alienation – marginalised offender – tragic personal history – Taliban – oppression of Tajiks – impact of deprivation on moral culpability – impact of deprivation on general deterrence – aggregate sentence – victim impact statements – no application under relevant provision – commencement date where parole revoked – special circumstances
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Drugs and Poisons Legislation Amendment (New Psychoative & Other Substances) Bill 2013 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Apps v R [2006] NSWCCA 290
Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Brown v R [2012] NSWCCA 199
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Callaghan v R [2006] NSWCCA 58
CMB v Attorney General for New South Wales [2015] HCA 9
Ghamraoui v R [2009] NSWCCA 111
Glare v R [2015] NSWCCA 194
JM v R [2014] NSWCCA 297
Kentwell v R (No 2) [2015] NSWCCA 96
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Markarian v The Queen [2005] HCA 25; 228 CLR
McIntosh v R [2015] NSWCCA 184
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
OS1 v R [2012] NSWCCA 102.
R v Alexander (1994) 78 A Crim R 141
R v AMT [2005] NSWCCA 151
R v Bolamatu [2002] NSWCCA 545
R v Booth [2014] NSWCCA 156
R v Bugmy (No 2) [2014] NSWCCA322
R v Burnes [2007] NSWSC 298
R v Cahill [2015] NSWCCA 53
R v Cartwright (1989) 17 NSWLR 243
R v Do (No. 4) [2015] NSWSC 512
R v Ellis (1986) 6 NSWLR 603
R v Gallagher (1991) 23 NSWLR 220
R v Halloun [2014] NSWSC
R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
R v Hines (No 3) [2014] NSWSC 1273
R v Israil [2002] NSWCCA 255
R v Johnson [2015] NSWSC 31
R v Lin (No 4) [2014] NSWSC 1801
R v LO [2003] NSWCCA 313
R v MJB [2014]…

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 NK (No 3)

Details

AGLC: R v NK (No 3) [2015] NSWSC 1257
Case: [2015] NSWSC 1257
Decision Date: 03 September 2015

CaseChat Overview and Summary

In this case, the respondent, NK, was convicted of multiple offences, including murder, related to gangland violence and a home invasion. The court was required to determine an appropriate sentence for NK, considering the extreme nature of the crimes, the role of duress, and NK's personal history, including his background as a refugee from Afghanistan and his involvement with the Taliban. The court also needed to assess the impact of NK's deprived upbringing on his moral culpability and general deterrence, as well as the aggregate sentence for the multiple offences.

The court considered the extreme nature of the crimes, the multiple shooting offences, and the use of a firearm, which made this a particularly egregious case of gangland violence. The court also considered NK's role in the crimes, including his participation in a contract killing and his involvement in the home invasion. The court found that NK's personal history, including his background as a refugee and his involvement with the Taliban, did not mitigate his moral culpability or general deterrence. The court also considered the impact of NK's deprived upbringing on his moral culpability and general deterrence, but found that this did not outweigh the severity of the crimes.

The court determined that the most extreme case principle applied, and that the maximum penalty was appropriate for each of the offences. The court also considered NK's assistance to authorities and his subjective case, but found that these factors did not warrant a reduction in sentence. The court found that NK's alienation and marginalised status did not mitigate his moral culpability or general deterrence. The court also considered the victim impact statements, but found that no application under the relevant provision was warranted. The court set a non-parole period of 34 years and a total sentence of 45 years, with special circumstances applying due to the extreme nature of the crimes.

The court ordered that NK's sentence commence from the date of his arrest, and that if parole was revoked, the sentence would commence from the date of revocation. The court also ordered that NK be credited with time served and that he be detained in a maximum-security facility. The court emphasised the importance of general deterrence in cases of gangland violence and firearm offences, and the need to send a strong message to the community about the consequences of such crimes.

Orders