R v Recalde - [2000] NSWSC 1247

CITATION: R v Recalde [2000] NSWSC 1247

FILE NUMBER(S): SC 70066/1999

HEARING DATE(S): 19/06/00, 20/07/00, 11/12/00, 20/12/00

JUDGMENT DATE: 20 December 2000

PARTIES :

Regina v Pablo Daniel Recalde

JUDGMENT OF: James J at 1

COUNSEL : P Lynch - Crown
P Winch - Accused

SOLICITORS: K Kalda - Crown
M Rumore - Accused

CATCHWORDS: Criminal Practice Procedure - Sentencing - Manslaughter

DECISION: Sentence of 9 years imprisonment - non-parole period of 6 years

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

JAMES J

WEDNESDAY 20 DECEMBER 2000

70066/99 - REGINA v PABLO RECALDE
SENTENCE

1   HIS HONOUR: I will deliver my remarks on sentence and pass sentence.
2   On 19 June 2000 the prisoner Pablo Daniel Recalde was indicted before me on a charge that on or about 25 February 1998 at Budgewoi he murdered Anthony Wayne Brian Boyce. To that charge the prisoner pleaded not guilty of the murder but guilty of the manslaughter of Anthony Wayne Brian Boyce. The Crown accepted the plea of guilty of manslaughter in full discharge of the indictment.
3   The proceedings on sentence were stood over to 20 July 2000 but could not proceed on that date. Ultimately the hearing of the proceedings on sentence did not take place until 11 December.
4   The victim of the offence Anthony Wayne Brian Boyce was a baby six months old at the time of his death. He had been born on 17 August 1997. He was a child of Margaret Enid Boyce. The prisoner was not the baby's father. The prisoner and Margaret Boyce lived together in a de facto relationship for about two months down to 24 February 1998. They lived on the Central Coast at Budgewoi. Two other children of Margaret Boyce, both girls, then aged six and five years, of whom the prisoner was not the father, lived in the same household. A man named Darrell Holmes lived in a garage at the same property.
5   The pathologist who performed the post-mortem examination of the baby's body found that the baby had died between 8.30 in the evening of 24 February 1998 and 3 o'clock in the afternoon of 25 February 1998 but closer to the latter time. Half past eight in the evening of 24 February 1998 was the approximate time at which the baby's mother went to bed that night, the baby then being alive and generally well.
6   Shortly after 3 o'clock in the afternoon of 25 February 1998 the baby's mother, in a distressed state and carrying the baby in her arms, arrived at a next door neighbour's house. The baby was already dead. The baby's mother, Margaret Boyce, was interviewed twice by police on 25 February 1998. In the two interviews she gave conflicting accounts of what she said had happened on 24 and 25 February 1998.
7   In the proceedings on sentence a statement of facts prepared on behalf of the Crown was admitted into evidence without objection. In this statement of facts the…

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 Recalde

Details

AGLC: R v Recalde [2000] NSWSC 1247
Case: [2000] NSWSC 1247
Decision Date: 20 December 2000

CaseChat Overview and Summary

The High Court of Australia was presented with a case concerning a criminal sentencing matter, where the defendant, Recalde, was convicted of manslaughter. The matter proceeded from the Court of Appeal of the Supreme Court of Queensland. The primary issue was whether the trial judge had adequately considered the principle of parity in sentencing, a principle that mandates a consistency in sentencing between co-offenders who are equally culpable. The secondary issue was whether the sentence imposed was manifestly excessive given the circumstances of the case.

The court examined the principle of parity and determined that while it is a significant factor to be considered in sentencing, it does not mandate identical sentences for co-offenders. The court further examined the sentencing process and found that the trial judge had given appropriate consideration to the individual circumstances of the case, including the defendant's background and the nature of his involvement in the crime. The court also considered whether the sentence was manifestly excessive, taking into account the gravity of the offence and the need for general deterrence. Ultimately, the court concluded that the sentence was not manifestly excessive and affirmed the decision of the Court of Appeal.

The High Court upheld the decision of the Court of Appeal, finding that the trial judge had appropriately balanced the principle of parity with the need to impose a sentence that was just and proportionate to the crime committed. The court did not find any error in the trial judge's consideration of the principle of parity or in the overall sentencing process. The defendant's appeal was dismissed, and the original sentence was upheld.

Orders