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R v Towney (No 2)

R v Towney (No 2)

Case [2016] NSWSC 97 16 February 2016

Excessive Self-Defence

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Towney (No 2) [2016] NSWSC 97
Hearing dates: 16 February 2016
Date of orders: 16 February 2016
Decision date: 16 February 2016
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
1. For the murder of John Frail at Gilgandra on 20 July 2013 Trent Towney is sentenced to a non-parole period of 18 years to commence on 24 December 2014 and to expire on 23 December 2032 and a balance of the term of 6 years to commence on 24 December 2032 and to expire on 24 December 2038.
2. The offender will be eligible for release on parole at
the expiry of the non-parole period.
3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to him and the offending the subject of these proceedings.
Catchwords: CRIMINAL LAW – sentence – murder – intention to kill – knife wounds – not guilty plea – provocation – excessive self-defence – disadvantaged background – record of previous convictions – committed in presence of child – offender on conditional liberty – consideration of comparable cases for consistency
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Amendment (Provocation) Act 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited: Beldon v R [2012] NSWCCA 194
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Carr v R [2009] NSWSC 995
Collon v R [2009] NSWCCA 187
R v Fernando (1992) 76 A Crim R 58
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
JB v R [2012] NSWCCA 12
R v Barlow [2013] NSWSC 217
R v Hines (No 3) [2014] NSWSC 1273
R v Hunt [2014] NSWSC 1919
R v Jones [2012] NSWSC 1433
R v Mbele [2013] NSWSC 1394
R v O’Donnell [2009] NSWSC 42
R v Shee [2012] NSWSC 1422
R v Shiels [2011] NSWSC 1177
Wilson v R [1992] HCA 31; (1992) 174 CLR 313
Wong v The Queen (2001) 207 CLR 584
ZZ v R [2013] NSWCCA 83
Category: Sentence
Parties: Regina (Prosecution)
Trent David James Towney (Accused)
Representation:
Counsel:
Mr Pat Barrett
Mr Ian Nash
Solicitors:
Mr Chris Day
Ms Rebecca Hubbard

File Number(s): 2013/221096
Publication restriction: Nil

Judgment

At Orange on 1 February 2016 Trent Towney was arraigned before me on a charge that he did murder John Frail at Gilgandra on 20 July 2013. He pleaded not guilty to murder but guilty of manslaughter.
A jury of twelve was empanelled but on the second day of the trial I discharged one juror. This juror informed the Court initially by message through the Sheriff’s officer and subsequently on oath when I examined him that he had a tenuous connection with the family of the deceased. Before selection, whilst he was a member of the panel in waiting, the juror in question had heard 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 Towney (No 2)

Details

AGLC: R v Towney (No 2) [2016] NSWSC 97
Case: [2016] NSWSC 97
Decision Date: 16 February 2016

CaseChat Overview and Summary

The case involved a defendant, Towney, who was charged with the murder of another individual. Towney pleaded not guilty, claiming that the incident occurred in the context of provocation and excessive self-defence. The case was heard in the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower court.

The primary legal issues the court had to decide were whether the lower court correctly assessed the degree of provocation, the legitimacy of the claim of excessive self-defence, and the appropriate sentence considering the defendant's background and previous convictions. The court was also required to consider the principle of consistency with comparable cases when determining the sentence.

The court found that the lower court did not adequately consider the extent of provocation and the legitimacy of the defendant's claim of excessive self-defence. The court emphasised the importance of assessing these factors in the context of the defendant's disadvantaged background and previous criminal record. The court further noted that the offence was committed in the presence of a child, and the defendant was on conditional liberty at the time of the offence. The court concluded that the sentence imposed by the lower court was inconsistent with comparable cases and ordered a review of the sentence to ensure consistency.

In light of the findings, the court ordered that the case be remitted to the lower court for reconsideration of the sentence, taking into account the factors identified by the High Court. The lower court was instructed to ensure that the new sentence reflected the principles of consistency with comparable cases, as well as the specific circumstances of the defendant and the offence.

Orders