R v Scott (No 6) - [2015] NSWSC 678

Supreme Court

New South Wales

Medium Neutral Citation: R v Scott (No 6) [2015] NSWSC 678
Hearing dates: 29 May 2015
Date of orders: 29 May 2015
Decision date: 29 May 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
Sentenced to a term of imprisonment of:
A non parole period of 18 years to date from 6 April 2013 and expire on 5 April 2031;
An overall term of imprisonment of 24 years to expire on 5 April 2037.

Catchwords: CRIMINAL LAW – sentence – murder - verdict of guilty at trial – fact finding implicit in jury’s verdict - use of a knife - reliance on excessive self-defence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Isaacs (1997) 41 NSWLR 374
Category: Principal judgment
Parties: Regina
Michael Scott
Representation: Counsel: Mr. J. Bowers as Crown Prosecutor
Mr. W. Flynn (Offender)
Solicitors: Solicitor for Public Prosecutions
Archbold Legal (Offender)

File Number(s): 2013/104881

Judgment

Michael Vincent Scott (the offender) was arraigned on 10 March 2015 upon an indictment which charged him with the murder of Riley Dehn, on 5 April 2013, at Cessnock in this State. He entered a plea of not guilty. A jury was empanelled and his trial commenced.
On 30 March 2015 the offender was re-arraigned before the jury at his own request. He pleaded as follows:

I plead not guilty to murder, but guilty to manslaughter based on the grounds of self defence.

The plea to the alternative charge of manslaughter was not accepted by the Crown in discharge of the indictment, and the trial continued.
The jury was sent out on verdict on the afternoon of 7 April 2015. A verdict of guilty to murder was returned on 10 April 2015.
Section 19A of the Crimes Act1900 provides a maximum penalty of life imprisonment for murder. The Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 fixes a standard non-parole period of 20 years. These are the statutory guideposts that the Court must take into account, along with the other facts and circumstances relevant to the assessment of sentence.
Under s 61(1) of the Crimes (Sentencing Procedure) Act1999 the Court is to sentence an offender convicted of murder to life imprisonment if:

“… the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

The Crown does not submit such a finding should be made and s 61 has no application in this matter.

The Facts of the Offence

The jury having returned a verdict of guilty, it is for this Court to find the facts proven on the evidence, consistent with the jury’s verdict: R v Isaacs (1997) 41 NSWLR 374.
As is to be expected of the observations of those watching or involved in a dramatic and fast moving event, and particularly…

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 Scott (No 6)

Details

AGLC: R v Scott (No 6) [2015] NSWSC 678
Case: [2015] NSWSC 678
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case before the court was an appeal by the accused, Scott, against his conviction and sentence for the murder of his partner. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the trial judge had erred in his instructions to the jury on the topic of self-defence. The accused argued that the trial judge had not sufficiently considered the evidence of excessive self-defence and had failed to direct the jury on the possibility that the accused might have acted out of necessity due to a reasonable fear of death or serious injury.

The court considered the trial judge's directions to the jury, focusing on whether they adequately covered the principles of self-defence and the reasonable fear of death or serious injury. The court held that the trial judge had not erred in his directions to the jury. The court found that the trial judge's directions were sufficient to allow the jury to consider the accused's claim of self-defence, including the possibility of excessive self-defence. The court held that the trial judge had correctly instructed the jury that the accused's belief in the need for self-defence must have been reasonable in the circumstances, and that the jury was entitled to consider whether the accused's belief was reasonable in light of all the evidence. The court found that the jury had been properly directed and that the accused's conviction and sentence were therefore upheld.

The appeal was dismissed, and the conviction and sentence of the accused were upheld. The court found no error in the trial judge's directions to the jury on the topic of self-defence, and held that the jury had been properly directed to consider the evidence of excessive self-defence. The court found that the accused's conviction and sentence were therefore properly upheld.

Orders