R v Shee, Gregory John - [2012] NSWSC 1422

Supreme Court

New South Wales

Medium Neutral Citation: R v SHEE, Gregory John [2012] NSWSC 1422
Hearing dates: 2 November 2012
Decision date: 23 November 2012
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
The offender is convicted and sentenced to a term of imprisonment. The Court sets a non-parole period of fifteen years commencing on 7 July 2010 and ending on 6 July 2025 with an additional term of five years commencing on 7 July 2025 and ending on 6 July 2030.

Catchwords: CRIME - sentencing following verdict - murder - self defence, intoxication and provocation rejected by jury - antecedents - mainly drug-related property offences and domestic violence offences - use of weapon - mild intellectual disability - low to medium risk of re-offending - absence of remorse.
Legislation Cited: Crimes Act 1900 - s 19A, s 23(2), Pt 11A
Crimes (Sentencing Procedure) Act 1999 -s 30A, s 54A, s 61(1)
Cases Cited: - Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- MAH v R [2006] NSWCCA 226
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Bugmy [2011] NSWSC 357
- R v Isaacs (1997) 41 NSWLR 374
- R v Koloamatangi [2011] NSWCCA 288
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Pilley (1991) 56 A Crim R 202
- R v Williams [2011] NSWSC 583
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category: Sentence
Parties: Crown (Prosecution)
Gregory Shee (Offender)
Representation: Counsel:
T.W. Thorpe (Crown)
M.D. Austin (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Douglass & Ford Criminal Law (Offender)

File Number(s): 2010/227071

Judgment on sentence

On 28 May 2012 Gregory John Shee was arraigned in this Court on an indictment that charged that he did on 8 July 2010 at Macquarie Fields in the State of New South Wales murder Hoang Tang. Mr Shee pleaded not guilty.

On 14 June 2012, a jury returned a verdict of guilty to the charge of murder.

The matter was initially listed for submissions on sentence on 6 August 2012 but was adjourned until 3 November 2012 to enable access to certain medical records to be arranged.

The maximum penalty for the offence of murder is life imprisonment (s 19A Crimes Act 1900). Subsection 61(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") requires that I impose a life sentence if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. I address the circumstances of the offence and the various factors relevant to the sentencing of the offender below. It suffices to state at the outset that I am not satisfied that a life sentence is warranted. 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 Shee, Gregory John

Details

AGLC: R v Shee, Gregory John [2012] NSWSC 1422
Case: [2012] NSWSC 1422
Decision Date: 23 November 2012

CaseChat Overview and Summary

The case before the court involved Gregory John Shee, who was found guilty of murder. The primary dispute was the sentencing that should follow this verdict. The court had to consider various mitigating factors such as the accused's self-defence claims, intoxication, and provocation, which were rejected by the jury. Additionally, the court needed to weigh the accused's criminal history, which predominantly included drug-related property offences and domestic violence offences, alongside the circumstances of the current offence, which involved the use of a weapon. The accused's mild intellectual disability and the risk assessment indicating a low to medium risk of re-offending were also considered. Furthermore, the court had to consider the absence of remorse displayed by the accused.

The court's task was to determine an appropriate sentence in light of these factors. It had to assess the credibility of the rejected mitigating claims, evaluate the significance of the accused's criminal history, and consider the impact of his intellectual disability and risk of re-offending. The court also had to balance these factors against the gravity of the offence and the absence of remorse. The court had to ensure that the sentence was proportionate to the crime while also taking into account the personal circumstances of the accused.

The court concluded that despite the mitigating factors, the severity of the crime warranted a significant custodial sentence. The history of offending, the nature of the current offence, and the absence of remorse all pointed towards a lengthy period of incarceration. The court acknowledged the accused's intellectual disability and low to medium risk of re-offending but found that these factors did not sufficiently mitigate the gravity of the offence. The court imposed a sentence of imprisonment, reflecting both the seriousness of the crime and the need for deterrence and protection of the community.

The final orders of the court were that Gregory John Shee be detained in custody for a specified term, reflecting the considerations outlined above. The court determined that the sentence should be long enough to adequately punish the offence and deter future criminal behaviour, while also providing an opportunity for rehabilitation and reintegration into society.

Orders