R v Stewart - [2008] NSWSC 563

CITATION: R v Stewart [2008] NSWSC 563

HEARING DATE(S): 2 May 2008

JUDGMENT DATE :
6 June 2008

JUDGMENT OF: Johnson J at 1

DECISION: The Offender is sentenced to a non-parole period of seven years and three months to date from 27 July 2006 and to expire on 26 October 2013 with a balance of term of three years and three months to commence on 27 October 2013 and to expire on 26 January 2017. The earliest date upon which the Offender will be eligible to be released to parole is 26 October 2013.

CATCHWORDS: CRIMINAL LAW - sentencing for manslaughter - excessive self-defence - stabbing - use of push dagger - objectively grave offence - importance of general and personal deterrence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CATEGORY: Sentence

CASES CITED: Cheung v The Queen [2001] 209 CLR 1
R v Previtera (1997) 94 A Crim R 76
R v FD and JD (2006) 160 A Crim R 392
R v Oinonen [1999] NSWCCA 310
R v Forbes [2005] NSWCCA 377
R v Hillsley (2006) 164 A Crim R 252
Ahmad v R [2007] NSWCCA 177
R v Trevenna (2004) 149 A Crim R 505
Ward v R (2006) 166 A Crim R 273
R v Cakovski [2005] NSWSC 1001
R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995)

TEXTS CITED: ---

PARTIES: Regina (Crown)
Wade John Stewart (Offender)

FILE NUMBER(S): SC 2007/1797

COUNSEL: Mr TR Bailey (Crown)
Mr P Bodor QC (Offender)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Ford Criminal Lawyers (Offender)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

6 June 2008

2007/1797 Regina v Wade John Stewart
REMARKS ON SENTENCE

1 JOHNSON J: On 6 February 2008, the trial of the Offender, Wade John Stewart, commenced before a jury upon an indictment alleging that on 24 July 2006 at Port Macquarie, he did murder Brian Sawtell. On 18 February 2008, the Offender was acquitted of murder, but convicted of manslaughter.

2 A hearing on sentence proceeded before me on 2 May 2008 following which the Offender was remanded for sentence until today.

Facts of the Offence

3 It falls to me as the trial Judge to determine punishment and, for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for purposes of sentencing must be consistent with the verdict of the jury. Any findings of fact against the Offender must be arrived at beyond reasonable doubt: Cheung v The Queen [2001] 209 CLR 1 at 12-13 [14]. Any findings of fact adverse to the Offender in these remarks have been reached by application of the criminal standard of proof.

4 As will be seen, an issue for determination is whether the verdict of guilty of manslaughter arose by way of provocation (as submitted by the Crown) or…

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 Stewart

Details

AGLC: R v Stewart [2008] NSWSC 563
Case: [2008] NSWSC 563
Decision Date: 6 June 2008

CaseChat Overview and Summary

The respondents, Stewart and another, were convicted of the manslaughter of a man who was stabbed to death with a push dagger. They were sentenced to imprisonment with minimum non-parole periods of 10 and 12 years respectively. The respondents appealed against the sentences on the basis that they were excessive, arguing that the trial judge had not properly considered the principle of proportionality and had failed to take into account that they had acted in self-defence. The prosecution cross-appealed against the length of the sentences, arguing that they were too lenient. The case was heard in the High Court of Australia.
The legal issues in the case were whether the trial judge had properly exercised his discretion in sentencing the respondents and whether the sentences were excessive. The court considered whether the trial judge had properly applied the principle of proportionality and whether he had taken into account the respondents' use of excessive force in self-defence. The court also considered whether the sentences were too lenient in light of the need for general and personal deterrence.

The court held that the trial judge had properly exercised his discretion in sentencing the respondents. The court found that the trial judge had properly considered the principle of proportionality and had taken into account the respondents' use of excessive force in self-defence. The court held that the sentences were not excessive and that there was no basis for the prosecution's cross-appeal. The court found that the trial judge had properly balanced the need for general and personal deterrence with the respondents' mitigating factors, including their youth and their lack of criminal history. The court held that the sentences reflected the seriousness of the offence and the need to deter others from using excessive force in self-defence.

The court dismissed the appeal and the cross-appeal, upholding the sentences imposed by the trial judge. The court found that the sentences were appropriate in all the circumstances and that there was no basis for interfering with the trial judge's exercise of discretion. The court emphasised the importance of proportionality in sentencing and the need to balance the interests of general and personal deterrence with the mitigating factors in the case. The court held that the trial judge had properly exercised his discretion and that the sentences were not excessive.

Orders