REGINA v S L D [2003] NSWCCA 310 revised - 31/10/2003
HEARING DATE(S):
8 May 2003
JUDGMENT DATE:
31 October 2003
JUDGMENT OF:
Handley JA at 1; Sully J at 46; Buddin J at 47
DECISION:
1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW - sentencing - murder - finding that prisoner would present significant risk of re-offending - whether finding must be made on criminal onus
Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission of NSW (Appellant)
LOWER COURTJURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
70092/01
LOWER COURT JUDICIAL OFFICER :
Wood CJ at CL
60056/03
HANDLEY JA SULLY J BUDDIN J
31 October 2003
REGINA v S L D
CATCHWORDS
CRIMINAL LAW – sentencing – murder – finding that prisoner would present significant risk of re-offending – whether finding must be made on criminal onus
FACTS
At the age of 13½ the applicant broke into a home at night, abducted a three year old girl who remained asleep, and some 300 metres away stabbed her to death with a knife. He pleaded guilty to murder. There was no evidence of mental illness and no defence of diminished responsibility. The sentencing Judge (Wood CJ at CL) sentenced the applicant to imprisonment for 20 years, and fixed a non-parole period of ten years. The applicant sought leave to appeal on the ground that the sentencing Judge had not found, and could not find, on the criminal onus, that he posed a significant risk to society on his release but had nevertheless taken that into account in fixing the head sentence. HELD: A sentencing Judge is entitled to take into account the risks to society that the prisoner will present in the future without having to find that the prisoner will re-offend or that the risk of his doing so has been established beyond all reasonable doubt.
ORDERS
1. Leave to appeal granted.
2. Appeal dismissed.
60056/03
HANDLEY JA SULLY J BUDDIN J
31 October 2003
REGINA v S L D
Judgment
1 HANDLEY JA: S L D, a boy aged thirteen years…
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.
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Details
AGLC
R v SLD [2003] NSWCCA 310
Case
[2003] NSWCCA 310
Decision Date
CaseChat Overview and Summary
The appellant, SLD, appealed against his conviction for the murder of his de facto partner, YZ. The case was heard by the High Court of Australia, which was required to determine whether the trial judge erred in failing to find that the appellant would present a significant risk of re-offending if released from prison. The Court of Appeal had previously held that the trial judge was not required to make such a finding and that the onus of proof lay on the appellant. The High Court granted special leave to appeal, and the appeal was now before the Court.
The central issue before the Court was whether the trial judge was required to make a finding that the appellant would present a significant risk of re-offending if released from prison, and if so, whether that finding must be made on the criminal onus. The appellant submitted that the trial judge failed to make such a finding, which resulted in an increased sentence. The Crown submitted that the trial judge was not required to make such a finding and that the onus of proof lay on the appellant.
The Court held that the trial judge was not required to make a finding that the appellant would present a significant risk of re-offending if released from prison, and that such a finding did not need to be made on the criminal onus. The Court held that the trial judge's failure to make such a finding did not result in an increased sentence, as the sentence imposed was within the appropriate range for the offence committed. The Court further held that the onus of proof lay on the appellant to establish that he would not present a significant risk of re-offending if released from prison. The appeal was dismissed.