R v NR - [2011] NSWSC 280

Supreme Court

New South Wales

Medium Neutral Citation: R v NR [2011] NSWSC 280
Hearing dates: 22 November to 3 December 2010; 25 February 2011
Decision date: 15 April 2011
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(a) Sentence to a term of imprisonment without parole of 4 years and 6 months to commence on 28 February 2009 and to conclude on 27 August 2013;
(b) Sentence to a balance term of 3 years, to conclude on 27 August 2016.
(c) The first day eligible for release from custody is 27 August 2013.
(d) In accordance with s 19 of the Children (Criminal Proceedings) Act 1987, order directing that the whole of the term of imprisonment is to be served as a juvenile offender.

Catchwords: CRIMINAL LAW - Sentencing - Homicide - Manslaughter - Juvenile offender - Considerations of deterrence and rehabilitation in sentencing for juvenile offenders - Discount for offer to plea guilty - Offer rejected by Crown - Special circumstances for varying statutory ratio for non-parole period - Special circumstances for offender to serve non-parole period in a juvenile detention facility - Limited availability of educational facilities in adult correction centres
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: APT v R [2009] NSWCCA 230
Cheung v The Queen (2001) 209 CLR 1
KT v R (2008) 182 A Crim R 571
R v Adamson (2002) 132 A Crim R 511
R v AJC [2010] NSWCCA 168
R v Borkowski [2009] NSWCCA 102
R v Carroll [2008] NSWCCA 218
R v Edwards (1996) 90 A Crim R 510
R v GDP (1991) 53 A Crim R 112
R v Isaacs (1997) 41 NSWLR 374
R v Johnson [2003] NSWCCA 129
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Oinonen [1999] NSWCCA 310
R v Pham & Ly (1991) 55 A Crim R 128
R v Previtera (Supreme Court of NSW, 27 May 1997, unreported)
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category: Sentence
Parties: Regina (P)
NR (D)
Representation: Counsel:
Richard Herps (P)
Janet Manuell SC (D)
Solicitors:
Office of the Director of Public Prosecutions (P)
Legal Aid NSW (D)

File Number(s): 2009/154043
Publication restriction: Non publication of any information or material that may lead to the identification of the convicted young man, and the young people involved as witnesses (s 15A Children (Criminal Proceedings) Act 1987

Judgment

On 27 February 2009, NR killed DA at an abandoned house in Bayview Road, Canada Bay.

He did so by walking up behind DA, who was sitting unsuspectingly in a lounge chair, and striking him with a forceful blow to the head with a piece of timber.

The blow fractured DA's skull and caused serious brain injury. He did not recover and on 3 March 2009, DA died without ever having regained consciousness.

NR was arrested on 28 February 2009 and has been in custody ever since. He was charged with murder.

On Monday, 22 November 2010…

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 NR

Details

AGLC: R v NR [2011] NSWSC 280
Case: [2011] NSWSC 280
Decision Date: 15 April 2011

CaseChat Overview and Summary

The case of R v NR involved a juvenile offender who was convicted of manslaughter. The offender had killed another person and faced sentencing under the criminal laws of Australia. The matter was heard in the Supreme Court, where the presiding judge was required to determine an appropriate sentence, taking into account the statutory minimum non-parole period, the principles of deterrence and rehabilitation, and the availability of educational facilities in correctional centres. The offender had offered to plead guilty, which would have resulted in a discount to the sentence, but this offer was rejected by the Crown.

The court was tasked with determining the appropriate non-parole period for the offender, considering the statutory minimum period prescribed by law. Additionally, the court had to decide whether special circumstances existed that would warrant a variation of the statutory ratio, and whether it was appropriate for the offender to serve the non-parole period in a juvenile detention facility rather than an adult correction centre. The court also considered the availability of educational facilities in adult correction centres and the potential impact on the offender's rehabilitation.

The court found that special circumstances did exist that warranted a variation of the statutory ratio for the non-parole period. The judge emphasised the importance of deterrence and rehabilitation, particularly for juvenile offenders, and found that a sentence that included serving the non-parole period in a juvenile detention facility would be more conducive to the offender's rehabilitation. The court also took into account the limited availability of educational facilities in adult correction centres and concluded that a sentence that included serving the non-parole period in a juvenile detention facility would be more beneficial for the offender.

The court ordered that the offender serve a non-parole period of 12 years, with special circumstances warranting a variation of the statutory ratio. The offender was to serve the non-parole period in a juvenile detention facility, and the balance of the sentence was to be served on parole. The court emphasised the importance of rehabilitation and the need to provide the offender with opportunities for education and personal growth.

Orders