R v Rajapakse (No 3) - [2024] NSWSC 1642

Supreme Court

New South Wales

Medium Neutral Citation: R v Rajapakse (No 3) [2024] NSWSC 1642
Hearing dates: 9 December 2024
Date of orders: 19 December 2024
Decision date: 19 December 2024
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) The offender, Russel Rajapakse, is convicted of the murder of Corey Breceljnik.
(2) For the murder of Corey Breceljnik, a sentence of imprisonment is imposed consisting of a non-parole period of 18 years commencing from 15 July 2021 and a head sentence of 24 years. The offender will become eligible to be released on parole on 14 July 2039. The overall sentence will expire on 14 July 2045.
(3) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and the fact that it applies to him and to this offence. His legal advisers are directed to explain the significance of this fact to him.

Catchwords:
CRIME – Murder – Sentencing following trial – Where offender inflicted fatal stab wound to the deceased’s armpit using a flick knife in the context of the deceased refusing to hand over stolen methylamphetamine – Where Crown and offender agreed that the offence was unplanned and involved an intent to cause grievous bodily harm – No finding of remorse – Poor prospects of rehabilitation found – Application of Bugmy principles

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dorsett v R [2024] NSWCCA 192
Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
Dungay v R [2020] NSWCCA 209
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
FL v R [2020] NSWCCA 114
Flick v R [2023] NSWCCA 197
Hoskins v R [2021] NSWCCA 169
Lupton v R [2024] NSWCCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Milat v R; Klein v R [2014] NSWCCA 29
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Campbell [2014] NSWCCA 102
R v Irwin [2019] NSWCCA 133
R v Isaacs (1997) 41 NSWLR 374
R v MJ [2023] NSWCCA 306
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Van Ryn [2016] NSWCCA 1
R v West [2014] NSWCCA 250
Toller v R [2021] NSWCCA 204
Wass v R [2022] NSWCCA 143

Category: Sentence
Parties: Rex (Crown)
Russel Rajapakse (Offender)
Representation:
Counsel:
C Young (Crown)
N Carroll (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Simon Joyner Lawyers (Offender)

File Number(s): 2020/00308992
Publication restriction: Nil

JUDGMENT

HIS HONOUR: Corey Breceljnik was a much-loved son to Julie, partner to Alyce and father to their two young boys,…

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: [2024] NSWSC 1642
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case of R v Rajapakse (No 3) involved the sentencing of the appellant for the murder of a man who had refused to hand over stolen methylamphetamine. The deceased was fatally stabbed in the armpit with a flick knife during the altercation. The Crown and the appellant agreed that the offence was unplanned and involved an intent to cause grievous bodily harm rather than an intent to kill. However, no finding of remorse was made against the appellant, and the court found that the appellant had poor prospects of rehabilitation.

The primary legal issues for the court to decide were the appropriate sentence for the offence of murder and the application of the Bugmy principles in the sentencing process. The court had to balance the severity of the offence with the Bugmy principles, which emphasise the importance of considering the offender's background, prospects of rehabilitation, and any mitigating factors in the sentencing process.

In determining the appropriate sentence, the court considered the Bugmy principles and the appellant's background, which included a history of drug use and previous criminal activity. However, the court found that the appellant's prospects of rehabilitation were poor, and there was no evidence of remorse. The court also considered the severity of the offence, which involved the use of a deadly weapon and resulted in the death of the victim. Ultimately, the court determined that the appropriate sentence was one of imprisonment with a non-parole period of 18 years. This sentence reflected the severity of the offence while also taking into account the Bugmy principles and the appellant's background and prospects of rehabilitation.

The court's decision in R v Rajapakse (No 3) highlights the importance of considering the Bugmy principles in the sentencing process for Indigenous offenders. The court recognised the need to balance the severity of the offence with the offender's background and prospects of rehabilitation, while also ensuring that the sentence reflects the gravity of the crime. The court's application of the Bugmy principles in this case demonstrates a commitment to achieving just outcomes for Indigenous offenders while also upholding the principles of justice and proportionality in the sentencing process.

Orders