R v Russell (No 3) - [2018] NSWSC 1673

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Russell (No 3) [2018] NSWSC 1673
Hearing dates: 12 – 16, 19 – 23, 26 – 28 March 2018, 19 October 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) Conviction recorded;

(2) Special circumstances found;

(3) Sentence imposed of a non-parole period of 14 years’ imprisonment, commencing 8 January 2016 and concluding 7 January 2030, with a balance of term of a further 10 years, concluding 7 January 2040;
(4) First eligible for parole on 8 January 2030.
Catchwords: CRIMINAL LAW – sentence – murder – plea to manslaughter – convicted or murder – findings of non-planned – offender moved in and out of rationality – one wound, little force, intention to injure not kill – objectively below mid-range – strong subjective circumstances - Fernando/Bugmy issues – effect of s 21A(5AA) Crimes (Sentencing Procedure) Act – Sentence imposed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A.
Crimes Act 1900 (NSW), Pt 11A
Crimes and Other Legislation Amendment (Assault And Intoxication) Act 2014 No 2 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Coco v R (1994) 179 CLR 427; [1994] HCA 15
Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Kennedy v R [2010] NSWCCA 260
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306
R v Fernando (1992) 76 A Crim R 58
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited: New South Wales, Parliamentary Debates, Legislative Assembly, January 30 2014, 26621 (Barry O'Farrell, Premier and Minister for Western Sydney).
Category: Sentence
Parties: Regina (Crown)
Kevin James Russell (Offender)
Representation:
Counsel:
W Creasy SC (Crown)
A Webb (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Maguire & McInerney (Offender)

File Number(s): 2016/7801
Publication restriction: Nil.

Remarks on sentence

HIS HONOUR: The Court must impose a sentence on Kevin James Russell, who a jury found to have murdered Alan Dempsey on 8 January 2016 in Wollongong. The offender, Mr Russell, pleaded not guilty to the murder of Mr Dempsey, the deceased, but guilty of manslaughter. The only issue at trial was whether the offender formed an intention to kill or to cause grievous bodily harm, when he stabbed the deceased.
Ordinarily, in the infliction of a stab wound an inference may be available that the person who inflicted such a wound intended to cause really serious injury, which is the meaning of the term “grievous bodily harm” and which, as an intention, is sufficient to…

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 Russell (No 3)

Details

AGLC: R v Russell (No 3) [2018] NSWSC 1673
Case: [2018] NSWSC 1673
Decision Date: 02 November 2018

CaseChat Overview and Summary

In the case of R v Russell (No 3), the defendant, Russell, was convicted of murder by the Supreme Court of New South Wales. The central dispute in the case concerned the appropriate sentence to be imposed on Russell, given his plea to manslaughter, and the specific circumstances surrounding the offence. The court was tasked with determining whether the sentence should be below the mid-range for murder, considering the non-premeditated nature of the crime, the limited force applied, and the absence of an intent to kill.

The legal issues before the court encompassed several key considerations, including the application of the Fernando and Bugmy principles to assess whether the sentence should be reduced due to the defendant's diminished capacity and the absence of planning in the crime. The court also had to evaluate the impact of section 21A(5AA) of the Crimes (Sentencing Procedure) Act, which pertains to the sentencing of offenders who acted under a significant mental or emotional disturbance. The court needed to balance these factors with the gravity of the offence and the need for appropriate punishment and deterrence.

In delivering the judgment, the court meticulously examined the evidence and circumstances of the case, acknowledging the lack of planning and the limited force used. The court found that Russell's actions, while resulting in a fatal injury, were not indicative of a premeditated intent to kill but rather stemmed from a momentary lapse in rationality. The court considered the subjective circumstances surrounding the offence and the objective severity of the crime, ultimately determining that the sentence should be below the mid-range for murder. The court also took into account the legislative provisions regarding significant mental or emotional disturbance, which supported a reduced sentence. The final sentence imposed by the court reflected these considerations, ensuring that the punishment was proportionate to the offence while also recognising the mitigating factors present in the case.

Orders