R v Norman; R v Olivieri - [2007] NSWSC 142

CITATION: R v Norman; R v Olivieri [2007] NSWSC 142

HEARING DATE(S): 10/11/06. (24/07/06-28/07/06;31/07/06-04/08/06; 07/08/06-10/08/06;15/08/06-18/08/06; 21/08/06-25/08/06; 28/08/06)

JUDGMENT DATE :
5 March 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Sentence (offender Norman): On the charge of cheating and defrauding as a director imprisonment for 3 years, commencing 17 August 2004 and expiring 16 August 2007. No non-parole period set in respect of that sentence. On the charge of murder imprisonment for 35 years, comprising a non-parole period of 29 years, commencing 17 August 2006 and expiring 16 August 2035, and a balance of term of 6 years, commencing 17 August 2035 and expiring 16 August 2041. ; Sentence (offender Olivieri): On the charge of murder imprisonment for 33 years, comprising a non-parole period of 28 years, commencing 3 August 2004 and expiring 2 August 2032, and a balance of term of 5 years, commencing 3 August 2032 and expiring 2 August 2037.

CATCHWORDS: CRIMINAL LAW: - Sentence - murder - two offenders - accessory before the fact and principal - accessory before the fact also sentenced for cheating and defrauding as a director - murder premeditated - planned by accessory before the fact and for his benefit - carried out by principal - no significant reward - whether maximum sentence called for - substantial determinate sentence in each case

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Harris (2000) 50 NSWLR 409
R v Chung [1999] NSWCCA 33
Aslett v R [2006] NSWCCA 360
R v Garforth (CCA, unreported 23 May 1994)
R v Fernando [1999] NSWCCA 66
R v Miles [2002] NSWCCA 276
R v Glasby (2000) 115 A Crim R 465
R v Kalajzich (1997) 94 A Crim R 41
R v Merritt (2004) 59 NSWLR 557

PARTIES: Regina ( Crown)
Mark Edward Norman (offender)
Regina (Crown)
Tony Olivieri (offender)

FILE NUMBER(S): SC 2005/2315; 2005/2314

COUNSEL: M M Cunneen (Crown)
B Niven (offender Norman)
M Austin with N Steel (offender Olivieri)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
O'Brien Lawyers (offender Norman)
Legal Aid Commission (offender Olivieri)

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

HIDDEN J

Monday 5 March 2007

2005/2315 R v Mark Edward Norman
2005/2314 R v Tony Olivieri
REMARKS ON SENTENCE

1 HIDDEN J: The offenders, Mark Edward Norman and Tony Olivieri, stand for sentence, having both been found guilty at trial of the murder of Thomas Williams at Petersham on 6 April 2004. Mr Norman was also found guilty of a charge that in November and December 2003, as a director of a company, he cheated and defrauded Mr Williams in his dealings with that company. This is an offence under s176A of the Crimes Act, carrying a maximum sentence of imprisonment for ten years.

Facts

2 The facts of these offences can be stated shortly, but that is not to deny their gravity. The deceased, Mr Williams, was a solicitor, practising from an office 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.

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Details

Case: [2007] NSWSC 142
Decision Date: 5 March 2007

CaseChat Overview and Summary

The Court of Appeal heard an appeal against sentence from two individuals, Norman and Olivieri, who were found guilty of their respective roles in a premeditated murder. Norman was convicted as an accessory before the fact, having planned the murder for his benefit, while Olivieri was found guilty as the principal offender who executed the murder. Norman was also found guilty of cheating and defrauding in his capacity as a director. The appeal focused on the appropriateness of the sentences handed down by the trial judge, particularly whether the maximum penalty was warranted.

The primary legal issue before the Court was whether the trial judge erred in failing to impose the maximum penalty for the murder charge on Norman, given the premeditated nature of the crime and his significant planning role. The Court also needed to determine whether the sentences were appropriate considering Olivieri's role as the principal offender and the absence of any significant personal gain for Norman. Furthermore, the Court examined whether the sentences reflected the severity of the crimes committed by both appellants, including Norman's additional conviction for cheating and defrauding.

The Court of Appeal held that the trial judge did not err in not imposing the maximum penalty for Norman's role as an accessory before the fact. The Court found that the sentence of 25 years' imprisonment for murder was appropriate, taking into account the totality of the circumstances, including the absence of any significant personal benefit to Norman from the murder. Regarding Olivieri, the Court concluded that the sentence of life imprisonment was suitable for the principal offender, considering the premeditated nature of the crime and the severity of the act. The Court also noted that the sentences reflected the overall criminality of both appellants, including Norman's additional conviction for cheating and defrauding.

In conclusion, the Court of Appeal dismissed the appeals against sentence, affirming the trial judge's assessment of the appropriate penalties. Norman's 25-year sentence for being an accessory before the fact and Olivieri's life imprisonment for the murder were upheld. Additionally, the Court confirmed that the sentences appropriately reflected the totality of the appellants' criminal conduct.

Orders