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R v Shillingsworth

R v Shillingsworth

Case [2023] NSWSC 453 1 May 2023

Criminal Liability

Sentencing

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Shillingsworth [2023] NSWSC 453
Hearing dates: 10 February 2023
Date of orders: 01 May 2023
Decision date: 01 May 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The offender is sentenced for the murder of Kevin Kourtis to imprisonment for a non-parole period of 9 years and 6 months commencing on 11 May 2021 and expiring on 10 November 2030 and a balance of term of 4 years expiring on 10 November 2034.

Catchwords:
CRIME – Sentence – Constructive murder – Offender pleaded guilty – totality and parity – special circumstances

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW) s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)-(3)
Crimes Act 1900 (NSW) ss 18(1)(a), 97(2)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Carreno v R [2023] NSWCCA 20
DS v R, DM v R [2022] NSWCCA 156
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Howard v R [2019] NSWCCA 109
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
R v Bell, Gavin Anthony [2013] NSWSC 1838
R v Garry Smale [2005] NSWSC 903
R v Houri [2007] NSWSC 615
R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452 at 512
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Sentence
Parties: Rex (Crown)
Shillingsworth (Offender)
Representation:
Counsel:
A Isaacs (Crown)
T Hughes (Offender)
Solicitors:
Officer of Director of Public Prosecutions (Crown)
Abbas Jacobs Lawyers (Offender)

File Number(s): 2020/00234873
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication or broadcast of the name or any identifying information concerning a person who was a child at the time of the offending in question.

JUDGMENT

Introduction

On 11 March 2022, the offender pleaded guilty in the Local Court to the offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and was committed for sentence to the Supreme Court.
In the statement of agreed facts signed by the offender on 11 March 2022, the basis for the offender’s plea was stated in par 2 as follows:

“[The offender] is entering a plea on the basis that this is a constructive murder. The foundational ‘25 year’ offence is an offence contrary to s.97(2) of the Crimes Act 1900, particularised as an assault with intent to rob in company while armed with a dangerous weapon.”

The offender is now to be sentenced for the murder of Kevin Kourtis on 24 May 2020.
Before turning to consider the circumstances of the offending and the offender’s subjective case, it is appropriate to acknowledge that Kevin Kourtis’s death, like the death of every human being in such circumstances, was a tragedy. These remarks, however, must focus on the events leading up…

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 Shillingsworth

Details

AGLC: R v Shillingsworth [2023] NSWSC 453
Case: [2023] NSWSC 453
Decision Date: 01 May 2023

CaseChat Overview and Summary

The High Court of Australia was asked to review the sentence imposed on Shillingsworth, who had pleaded guilty to the charge of constructive murder. The trial judge had found that Shillingsworth had not personally killed the victim but had supplied the means by which the murder was committed. The Court of Criminal Appeal had reduced the sentence, and the prosecution appealed to the High Court, seeking a harsher penalty. The central issue was whether the Court of Criminal Appeal had correctly applied the principles of sentencing for constructive murder, particularly in light of the totality and parity principles, and whether there were any special circumstances that warranted a different outcome.

The High Court considered whether the Court of Criminal Appeal had erred in its application of the principles of sentencing for constructive murder. The Court emphasised the importance of the totality principle, which requires that the totality of a defendant's criminal conduct be considered when determining an appropriate sentence. The Court also considered the parity principle, which ensures that similar offences are punished similarly. The Court noted that Shillingsworth had a prior criminal history and had played a significant role in the commission of the murder, even though he was not the actual killer. However, the Court found that the Court of Criminal Appeal had appropriately taken into account the totality of Shillingsworth's criminal conduct and the need to maintain parity with similarly situated offenders.

In reaching its decision, the High Court held that the Court of Criminal Appeal had not erred in its sentencing of Shillingsworth. The Court found that the sentence imposed reflected the seriousness of the offence and Shillingsworth's role in its commission, while also taking into account the totality of his criminal conduct and the need for parity with similarly situated offenders. The Court further found that there were no special circumstances that warranted a different outcome. Accordingly, the High Court dismissed the prosecution's appeal and upheld the sentence imposed by the Court of Criminal Appeal.

The final orders of the High Court were that the prosecution's appeal be dismissed and that the sentence imposed by the Court of Criminal Appeal be upheld. The Court did not alter the sentence but confirmed that it was appropriate in the circumstances. The decision serves as a reminder of the importance of considering the totality and parity principles when sentencing offenders for serious crimes, particularly where the offender has played a significant role in the commission of the offence.

Orders