R v Papandrea - [1999] NSWSC 978

CITATION: R v Papandrea [1999] NSWSC 978

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70097/97

HEARING DATE(S): 10 August-17 August, 24 September 1999

JUDGMENT DATE:
24 September 1999

PARTIES :

Regina
Andrew James Papandrea

JUDGMENT OF: Studdert J

COUNSEL : M. McAdam QC (Crown)
C. Bruce (Prisoner)

SOLICITORS: Director of Public Prosecutions (Crown)
Trenches (Prisoner)

CATCHWORDS:

ACTS CITED: Crimes Act

CASES CITED: Maxwell v The Queen (1995-96) 184 CLR 501
R v Cartwright (1989) 17 NSWLR 243
R v King (1998-99) 99 A Crim R 288
R v Dunn (unreported, NSWCCA, 28 October 1997)
R v McEwan (unreported, Barr J, 9 July 1998)
R v Sherry (unreported, Levine J, 9 July 1999)
R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Troja (unreported, NSWCCA, 16 July 1991)
R v Maguire (unreported, NSWCCA, 30 August 1995)
R v Dodd (1991) 57 A Crim R 349
R v Previtera (1998) 94 A Crim R 76

DECISION: See para 50

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

STUDDERT J
Friday 24 September1999

070097/97 REGINA v ANDREW JAMES PAPANDREA
SENTENCE
1   HIS HONOUR: On 19 March 1999 the prisoner, Andrew James Papandrea, pleaded not guilty before Mr Justice Barr on the presentation of an indictment charging him with having murdered Guy Piers Janjic at Binna Burra on 15 May 1997. The prisoner adhered to that plea in this Court on 10 August 1999 and his trial began before a jury.
2   However on 16 August 1999, on the morning of the fifth day of the trial, the prisoner sought to be re-arraigned and on this occasion whilst pleading not guilty to murder pleaded guilty to manslaughter. The Crown accepted that plea in satisfaction of the indictment. Following Maxwell v The Queen (1995-96) 184 CLR 501 it is settled that a trial judge cannot reject a plea such as that entered here unless it is perceived that the prosecution acted irresponsibly in accepting the plea to the lesser offence: see in particular the joint judgments of Dawson and McHugh JJ at 514 and of Gaudron and Gummow JJ at 355-356. No such perception was warranted in this case and accordingly the jury was discharged pursuant to s 399A of the Crimes Act. The prisoner was convicted of the crime of manslaughter and was remanded until 17 August 1999 for the taking of evidence and receiving submissions on sentence. Having heard the submissions of counsel on 17 August, I remanded the prisoner in custody for sentence on a date to be fixed.
3   It is necessary now to address the facts in this matter.
4   The deceased died from the effects of a shotgun wound to his chest. The weapon from which the shot was fired was a single barrelled shotgun that the prisoner had acquired some weeks prior to the shooting. The shooting occurred at the prisoner’s home at Binna Burra at about 3.00 am on 15 May 1997. The prisoner had known the deceased for two to three years and he…

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 Papandrea

Details

AGLC: R v Papandrea [1999] NSWSC 978
Case: [1999] NSWSC 978
Decision Date: 24 September 1999

CaseChat Overview and Summary

The case of R v Papandrea involved Andrew James Papandrea, who was charged with the murder of Guy Piers Janjic. Papandrea pleaded not guilty but later pleaded guilty to manslaughter. The court had to determine the appropriate sentence for the manslaughter conviction. The key legal issues were the nature of the unlawful and dangerous act, and the appropriate sentence considering both objective and subjective circumstances.

The court found that Papandrea discharged the shotgun at a distance of at most one metre from the victim, which constituted a dangerous act. Despite Papandrea's claim that the shooting was accidental, the court rejected his account as not credible. The court identified the unlawful and dangerous act as Papandrea pressing back the trigger of the loaded weapon while it was pointed at the victim.

In determining the sentence, the court considered various factors, including the objective seriousness of the crime, Papandrea's lack of intent to kill, his expressions of remorse, his background, and his prior criminal record. The court also took into account the restrictive bail conditions and Papandrea's efforts towards rehabilitation. Ultimately, the court sentenced Papandrea to a total of nine years in penal servitude, with a minimum term of six years and an additional term of three years. The sentence was structured to allow for early parole eligibility after six years.

Orders