R v Valera - [2000] NSWSC 1220

CITATION: R v Valera [2000] NSWSC 1220

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 70039/99

HEARING DATE(S): 12/7/00, 13/7/00, 14/7/00, 18/7/00, 20/7/00, 21/7/00, 24/7/00, 25/7/00, 26/7/00, 27/7/00, 28/7/00, 31/7/00, 1/8/00, 2/8/00, 3/8/00, 4/8/00, 7/8/00, 8/8/00, 1/9/00, 6/10/00

JUDGMENT DATE: 21 December 2000

PARTIES :

Regina v Mark Mala Valera @ Mark Jack Van Krevel

JUDGMENT OF: Studdert J

COUNSEL : P. Conlon (Crown)
J. Nicholson SC (Prisoner)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Sydney Regional Aboriginal Corporation Legal Service (Prisoner)

CATCHWORDS: Criminal law - sentences for two murders - operation of common law principles of "worst category" of case - effect of s 61 Crimes (Sentencing Procedure) Act - consideration of subjective circumstances - absence of jurisdiction to set non parole period for sentence of life imprisonment for murder.

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act

CASES CITED: Bugmy v The Queen (1990) 169 CLR 625
R v Bell (1985) 2 NSWLR 466
R v Bollen 99 A Crim R 510
R v Dang [1999] NSWCCA 42
R v De Gruchy (unreported, Grove J, 17 December 1998)
R v Fernando [1999] NSWCCA 66
R v Garforth (unreported, NSWCCA, 23 May 1994)
R v Harris (2000) 111 A Crim R 415
R v Harris [2000] NSWCCA 469
R v Kalajzich (1997) 94 A Crim R 41
R v Leonard (unreported, NSWCCA, 7 December 1998)
R v Park (unreported, Sperling J, 3 August 2000)
R v Petroff (unreported, Hunt CJ at CL, 12 November 1991)
R v Previtera 94 A Crim 76
R v Robinson [2000] NSWSC 972
R v Steel (unreported, Hunt CJ at CL, 12 May 1994)
R v Street (unreported, NSWCCA, 17 December 1996)
R v Trotter (unreported, Hunt CJ at CL, 10 August 1993)
R v Twala (unreported, NSWCCA, 4 November 1994)
Veen v The Queen (No. 1) (1979) 143 CLR 458
Veen v The Queen (No. 2) (1988) 164 CLR 465

DECISION: See para 127

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J
Thursday 21 December 2000

030035/99 REGINA v MARK MALA VALERA @ VAN KREVEL
SENTENCE
1   HIS HONOUR: The prisoner, Mark Mala Valera, stood trial in Wollongong charged with two counts of murder to which, upon the presentation of the indictment on 12 July 2000, he pleaded not guilty to murder but guilty to manslaughter. Those pleas were not accepted by the Crown and the trial proceeded.
2   On 8 August 2000 the jury found the prisoner guilty as charged on both counts, so the prisoner is convicted of the murder of David John O’Hearn on 12 June 1998 and of the murder of Francis Neville Arkell on 26 June 1998.
3   It is now my responsibility to sentence the prisoner for these two crimes having heard submissions on sentence from the Crown on 1 September 2000 and from Mr Nicholson on 6 October 2000.
4   Victim impact statements have been placed before the Court from relatives of each of the deceased, but it is well settled that…

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 Valera

Details

AGLC: R v Valera [2000] NSWSC 1220
Case: [2000] NSWSC 1220
Decision Date: 21 December 2000

CaseChat Overview and Summary

The appellant was convicted of two murders, and sentenced to two terms of life imprisonment. The court found that the sentences were inadequate and increased them. The appellant sought leave to appeal against the severity of his sentences, arguing that the sentence was disproportionate to the crimes and the objective circumstances of the case. The appeal concerned the operation of common law principles of the "worst category" of case and the effect of section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appellant argued that the sentencing judge erred by failing to consider the subjective circumstances of his case, which warranted a lesser sentence. The court considered whether the sentencing judge erred in law by not considering the subjective circumstances of the appellant's case, and whether the sentence was proportionate to the crimes committed. The court found that the sentencing judge was not obliged to consider subjective circumstances, and that the sentence was proportionate to the crimes. The court also found that it did not have the jurisdiction to set a non-parole period for a sentence of life imprisonment for murder. The appeal was dismissed.

Orders