R v Perish - [2012] NSWSC 355

Supreme Court

New South Wales

Medium Neutral Citation: R v Perish; Perish & Lawton [2012] NSWSC 355
Hearing dates: 27 July 2011 - 29 July 20111 August 2011 - 31 August 2011 1 September 2011 - 14 September 2011 11 November 201116 March 2012
Decision date: 13 April 2012
Before: Price J
Decision:
See paragraphs 113 - 199

Catchwords: CRIMINAL LAW - Murder - Conspiracy to murder
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
s 3A, s 21A, s 44
Cases Cited: Barlow v R [2008] NSWCCA 96
Knight v The Queen (2006) 164 A Crim R 126
R v Bowey (unrep, 22/7/91, NSWCCA)
R v Hutchins (1958) 75 WN (NSW) 75
R v Isaacs (1997) 41 NSWLR 374
R v Previtera (1997) 97 A Crim R 76
R v Smith (1987) 44 SASR 587
R v Swan [2006] NSWCCA 47
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
R v Mitchell [2007] NSWCCA 296
R v Pilley (1991) 56 A Crim R 202
Category: Sentence
Parties: Andrew Michael Perish
Anthony John Perish
Matthew Lawton
Representation: Mr P Leask (Crown)
Mr S Hanley SC (Matthew Lawton)
Ms C Davenport SC (Anthony Perish)
Mr W Terracini SC (Andrew Perish)
Ms V Garrity (Director of Public Prosecutions)
Mr W O'Brien - William O'Brien & Ross Hudson Solicitors (Anthony Perish)
Mr B Archbold Archbold Legal Services (Andrew Perish)
Mr E Matouk - Matouk Joyner Lawyers (Matthew Lawton)

File Number(s): 2009/145260 2009/148002 2009/150111

Judgment

HIS HONOUR: Anthony John Perish and Matthew Robert Lawton have been found guilty by a jury of the murder of Terrence Falconer on or about 16 November 2001. They were also found guilty by the jury of conspiring with Andrew Michael Perish between 1 January 2001 and 17 November 2001 to murder Mr Falconer.

Andrew Michael Perish was found guilty by the jury of conspiring with Anthony John Perish and Matthew Robert Lawton between 1 January 2001 and 17 November 2001 to murder Mr Falconer.

The maximum penalty for the crime of murder is imprisonment for life. The maximum penalty for the crime of conspiracy to murder is imprisonment for 25 years.

The offences were committed in 2001. I am required to sentence the offenders in accordance with the sentencing practice as at the date of the commission of the offences and not as presently prevails: R vMJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. Part 4 Division 1A - standard non-parole periods of the Crimes (Sentencing Procedure) Act 1999 which came into force on 1 February 2003 does not apply to the present sentences. Sections 3A and 21A of the Crimes (Sentencing Procedure) Act, however, do apply.

It is my duty to determine the facts relevant to sentencing each offender. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against an offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters 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 Perish

Details

AGLC: R v Perish [2012] NSWSC 355
Case: [2012] NSWSC 355
Decision Date: 13 April 2012

CaseChat Overview and Summary

The appellant, Perish, was convicted of conspiracy to murder in the Supreme Court of South Australia. The dispute arose from an alleged plot to kill a rival gang member. The case was appealed to the High Court of Australia, which had to determine whether the lower court erred in convicting Perish of conspiracy to murder.

The primary legal issue before the High Court was whether the trial judge misapplied the legal principles governing conspiracy charges. The Court needed to examine whether there was sufficient evidence to establish an agreement between Perish and another individual to commit the murder, and whether Perish's actions demonstrated an intention to carry out the plan. The Court also had to consider whether the trial judge appropriately instructed the jury on the elements of conspiracy to murder.

The High Court found that the trial judge did not err in convicting Perish of conspiracy to murder. The evidence showed that Perish and the co-conspirator had an agreement to commit the murder, and Perish's actions demonstrated intent to execute the plan. The Court held that the trial judge correctly instructed the jury on the elements of conspiracy to murder, ensuring that the jury was properly guided in their deliberations. Therefore, the conviction was upheld.

The High Court dismissed the appeal, affirming Perish's conviction for conspiracy to murder. The Court's decision underscores the importance of clear evidence and proper jury instructions in conspiracy cases, particularly when it comes to proving the intent and agreement necessary to establish a conspiracy.

Orders