R v Paton - [2014] NSWSC 71

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Paton [2014] NSWSC 71
Hearing dates: 7 February 2014
Decision date: 14 February 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Sentenced to imprisonment for 19 years to date from 10 November 2011 and expire on 9 November 2030, comprising a non-parole period of 14 years 3 months, followed by a balance of the term of sentence of 4 years 9 months. The first date upon which the offender will be eligible for release to parole is 9 February 2026.

Catchwords: CRIMINAL LAW - remarks on sentence - plea of not guilty - offender convicted of murder - accessory - little active role but aware for some hours that the offence was to occur - dispute as to facts on sentence - reliability of key witness - offender on parole at time of offence - sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s21A
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
R v Kearnes (No 2) [2013] NSWSC 1652
Category: Sentence
Parties: Regina
Christopher John Paton
Representation: Counsel:
B Hughes SC (Crown)
E Wilson SC (Defendant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Pogson Cronin (Defendant)

File Number(s): 2011/359425

Judgment

On 21 October 2013, Christopher John Paton (to whom I shall usually refer as "the offender" in these remarks on sentence) was arraigned in the Supreme Court at Albury before a jury panel and me. The indictment contained a single count of murder. The issue between the Crown and the offender in the trial was a circumscribed one. The Crown alleged that the offender had been criminally involved in the murder by shooting of Mr Semin Rizvic (to whom I shall usually refer as "the deceased" in these remarks) before or during its occurrence. The position of the offender was that he was merely an accessory after the fact to that murder. By way of its verdict of guilty delivered on 4 November 2013, the jury determined that issue in favour of the Crown.

The maximum penalty for the offence of murder in New South Wales is imprisonment for life without the possibility of parole. In the circumstances of this case, there is also an applicable standard non-parole period of 20 years. I have borne those two important guideposts firmly in mind. The Crown Prosecutor has not submitted that this is a case that should lead to the imposition of the maximum penalty. Nor do I consider that the imposition of such a penalty is appropriate in this case.

Fact finding

My approach to the determination of the facts of the matter is as follows. Any fact that I regard as adverse to the offender above and beyond the elements of the offence must be proven beyond reasonable doubt. A fact that I regard to be in his favour need be proven on the balance of…

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 Paton

Details

AGLC: R v Paton [2014] NSWSC 71
Case: [2014] NSWSC 71
Decision Date: 14 February 2014

CaseChat Overview and Summary

In the case of R v Paton, the defendant, Paton, was convicted of murder in the Supreme Court of Victoria. Paton was found to be an accessory to the murder, having been aware for some hours that the crime was to occur but not actively participating in it. The key issue before the court was the appropriate sentence for Paton, who had pleaded not guilty. The trial judge considered the reliability of the key witness, the circumstances of the offence, and Paton's background, including his status as a parolee at the time of the offence. The court was tasked with determining the appropriate punishment for Paton, balancing the severity of the crime with his level of involvement and other mitigating factors.

The court acknowledged that Paton's role was largely passive, yet he was aware of the impending crime for several hours. This awareness was deemed significant in establishing his culpability. The trial judge also considered Paton's criminal history and his status as a parolee at the time of the offence, which underscored the gravity of his breach of parole conditions. The reliability of the key witness was scrutinised, and while there were disputes regarding certain facts, the court found the evidence sufficiently compelling to convict Paton. The court's reasoning focused on the need to impose a sentence that reflected the seriousness of the crime while also considering Paton's limited direct involvement and other mitigating circumstances.

After weighing these factors, the court determined that Paton's sentence should reflect both the severity of the crime and his lesser role in its execution. The court imposed a sentence that was deemed appropriate under the circumstances, taking into account the nature of Paton's involvement and the reliability of the evidence presented. The final orders included the conviction of Paton as an accessory to murder, with a specific sentence reflecting the court's assessment of his culpability and the mitigating factors presented.

Orders