8 April, 10-12 April, 15-18 April, 22-24 April, 26 April, 29 April; 6 June 2013
Decision date:
21 June 2013
Jurisdiction:
Common Law - Criminal
Before:
Bellew J
Decision:
The offender is sentenced as follows:
(i) In respect of the charge of assaulting Kimberly Lasaqa thereby occasioning actual bodily harm to her, the offender is sentenced to a fixed term of 9 months imprisonment commencing on 1 October 2011 and ending on 30 June 2012.
(ii) In respect of the charge of recklessly inflicting grievous bodily harm upon David Lindsay, the offender is sentenced to a fixed term of 2 years and 6 months imprisonment, commencing on 1 April 2012 and ending on 30 September 2014.
(iii) In respect of the charge of murdering Jazmin-Jean Ajbschitz I fix a non-parole period of 24 years imprisonment, commencing on 1 April 2013 and ending on 31 March 2037, with a balance of term of 8 years imprisonment, commencing on 1 April 2037 and ending on 31 March 2045.
(iv) The total term of imprisonment is one of 33 years and 6 months.
(v) The total non-parole period is one of 25 years and 6 months.
(vi) The offender will be eligible for release on parole on 1 April 2037.
(vii)The sentence will expire on 31 March 2045.
Catchwords:
MURDER - sentence following verdict of guilty by a jury - where offender and deceased in a domestic relationship - where previous acts of violence by the offender towards the deceased in the course of that relationship - necessity to determine sentence in the context of that relationship - where offence of murder aggravated by the offender having been released on conditional liberty only three months earlier - where offender's expressed remorse appeared genuine - where prospects of rehabilitation dependent upon commitment and adherence to treatment to address drug addiction - where offender's conduct of trial reflected a willingness to facilitate the course of justice
SENTENCE - Intoxication - where offender used ice and consumed alcohol leading up to commission of the deceased's murder - where evidence of increased aggression and violence as the result of use of ice - where offender aware for some time beforehand of the likely consequences of his drug use in terms of his behaviour - where offender chose to continue his drug taking - where offending aggravated by intoxication as a result
SENTENCE - where additional offences of violence occurred prior to the offence of murder
[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
AGLC
R v Sean Lee King [2013] NSWSC 801
Case
[2013] NSWSC 801
Decision Date
CaseChat Overview and Summary
In the case of R v Sean Lee King, the appellant was found guilty by a jury of the murder of his partner. The relationship between the offender and the deceased was marked by a history of domestic violence, which the court took into consideration when determining the sentence. Additionally, the murder occurred only three months after the offender had been released on conditional liberty, further aggravating the offence. Despite the appellant's expressed remorse appearing genuine, the court had to weigh this against his persistent drug use and the associated aggressive and violent behaviour that led up to the murder. The offender had been aware of the likely consequences of his drug use and alcohol consumption but chose to continue using drugs, which the court deemed a significant aggravating factor.
The court was tasked with assessing the appropriate sentence for the offence of murder, considering the domestic violence context, the offender's drug use, and the circumstances of his release. The court also needed to consider whether intoxication could be considered a mitigating factor, despite the offender's awareness of the likely consequences of his drug use. Furthermore, the court had to evaluate the impact of additional violent offences that occurred prior to the murder. The offender's conduct during the trial, which reflected a willingness to facilitate the course of justice, was also taken into account.
The court concluded that the domestic relationship and prior acts of violence were significant factors in the sentencing. The offender's choice to continue using drugs, despite knowing the potential for violent behaviour, was heavily weighed as an aggravating factor. The court also recognised the genuine remorse expressed by the offender but considered it insufficient to override the gravity of the offence and the context of the relationship. The court ultimately determined the sentence in light of these considerations, taking into account both aggravating and mitigating factors. The final orders reflected the court's decision on the appropriate sentence, balancing the severity of the crime with the mitigating circumstances.