R v Sinclair - [2017] NSWSC 686

Supreme Court

New South Wales

Medium Neutral Citation: R v Sinclair [2017] NSWSC 686
Hearing dates: 1 – 3 May 2017
Decision date: 15 May 2017
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Aggregate term of imprisonment for 38 years with a non-parole period of 28 years 6 months.

Catchwords: CRIMINAL LAW – sentence – murder – joint criminal enterprise – objective seriousness well above mid-range – not established that the offender was aware of the possibility of death – gratuitous infliction of extreme violence – criteria for life sentence for murder not established
CRIMINAL LAW – sentence – two counts of break, enter and steal in company in circumstances of special aggravation – two counts of detain with intention to obtain financial advantage while in company – one count of detain and cause actual bodily harm with intention to obtain financial advantage while in company – joint criminal enterprise – offender instrumental in formulation and execution of some offences – infliction of harm foreseen but not intended
CRIMINAL LAW – sentence – offender’s personal circumstances – addiction to methamphetamine – genuine remorse – good prospects of rehabilitation – guilty pleas – assistance to authorities in trial of co-accused last minute – other matters – general deterrence particularly significant for armed home invasion offences – no finding of special circumstances – aggregate sentence imposed
Legislation Cited: Crimes Act 1900 (NSW) ss 19A, 86(2), 112(3)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21, 23(4), 61
Criminal Appeal Act 1912 (NSW) s 5DA
Category: Sentence
Parties: Regina
“Kurt Sinclair” (a pseudonym)
Representation:
Counsel:
Mr C Maxwell QC (Crown)
Mr S Corish (Offender)
Solicitors:
Solicitor for Public Prosecutions
Kiki Kyriacou Lawyers

File Number(s): 2014/309120
Publication restriction: Non-publication of anything that would identify the offender pursuant to s 7(a) and s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

HIS HONOUR: The offender is to be sentenced for serious offences arising from two home invasions in which he participated, one at Medway on 28 April 2014 and one at Badgerys Creek on 30 May 2014.
There is a non-publication order in respect of anything that may tend to identify the offender. For that reason a pseudonym has been used in respect of him and members of his family and some personal information has been redacted in this published version of the judgment.
The offences are:

At Badgerys Creek on 30 May 2014:

1. Murder of Mr Keith Cini
2. Break, enter and steal in circumstances of special aggravation, namely that he was in company and that grievous bodily harm was intentionally inflicted upon Ms Luciana Boldi

At Medway on 28 April 2014:

3.   Break, enter and steal in circumstances of special aggravation, namely that he was in company and grievous bodily harm was intentionally inflicted upon Mr Brett Delamont
4.   Detain Ms Alana Bush with the intention of obtaining a financial advantage while in company
5.   Detain Ms Kirby Delamont with the intention of obtaining a financial…

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 Sinclair

Details

AGLC: R v Sinclair [2017] NSWSC 686
Case: [2017] NSWSC 686
Decision Date: 15 May 2017

CaseChat Overview and Summary

In the case of R v Sinclair, the appellant was convicted of various serious offences, including murder, armed home invasion, and deprivation of liberty with intent to obtain financial advantage. The appeal centred on the sentence imposed by the Supreme Court of Victoria. The court was required to decide whether the sentence was manifestly excessive or inappropriate, particularly given the nature of the crimes and the appellant's personal circumstances.

The legal issues before the court involved the assessment of the objective seriousness of the offences, the appellant's role in the joint criminal enterprise, and the relevance of personal circumstances such as addiction and remorse in sentencing. The court had to consider whether the criteria for a life sentence for murder were met, the significance of the appellant's instrumental role in some of the offences, and the impact of his assistance to authorities at the last minute.

The court concluded that the aggregate sentence was not manifestly excessive. While the objective seriousness of the offences was very high, the court did not find that the appellant was aware of the possibility of death when committing the murder. Additionally, the court found that the criteria for a life sentence for murder were not established, as the gratuitous infliction of extreme violence was not intended. The court also considered the appellant's personal circumstances, including his addiction to methamphetamine and genuine remorse, but emphasised the significance of general deterrence, particularly for armed home invasion offences. The court found no special circumstances and affirmed the aggregate sentence imposed.

The court dismissed the appeal, affirming the sentence imposed by the trial judge. The appellant was to serve a total of thirty years imprisonment, with a non-parole period of twenty-two and a half years.

Orders