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R v Valiukas

R v Valiukas

Case [2009] NSWSC 808 14 August 2009

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CITATION: R v Valiukas [2009] NSWSC 808

HEARING DATE(S): 29 April - 8 May 2009, 31 July 2009

JUDGMENT DATE :
14 August 2009

JURISDICTION: Common Law Division

JUDGMENT OF: R A Hulme J

DECISION: Sentenced to imprisonment for a term of 18 years with a non-parole period of 13 years 6 months

CATCHWORDS: CRIMINAL LAW - sentence - murder - unsuccessful defence of substantial impairment by abnormaility of mind - relevance of state of mind at time of offence - reduced moral culpability and emphasis on general deterrence - ten year delay from offence to sentence - favourable subjective case - protective custody

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

CATEGORY: Sentence

CASES CITED: R v Bloomfield (1998) 44 NSWLR 734
R v Champion (1992) 64 A Crim R 244
R v Cheatham [2002] NSWCCA 360
R v Elphick [2002] NSWCCA 273
R v Hemsley [2004] NSWCCA 228
R v Letteri, NSWCCA 18 March 1992, unreported
R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
R v Patrick Joiner [2002] NSWCCA 354; (2002) 133 A Crim R 90
R v Way (2004) 60 NSWLR 168
R v Woods [2009] NSWCCA 55

PARTIES: R v David Martin Valiukas

FILE NUMBER(S): SC 2008/9436

COUNSEL: Ms M Cunneen SC (Crown)
Mr P Winch (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A Hulme J

14 August 2009

2008/9436 R v David Martin VALIUKAS
REMARKS ON SENTENCE

1 HIS HONOUR: The offender, David Martin Valiukas strangled his former partner and mother of his two children, Ms Lisa Clymer, in her home at Bradbury on about 21 September 1999.

2 On 29 April 2009 he was arraigned upon a charge of murder to which he pleaded not guilty but guilty of manslaughter. The Crown did not accept that plea and so a jury was empanelled and a trial proceeded. On 8 May 2009 the jury returned a verdict of guilty of murder.

3 The crime of murder has prescribed for it a maximum penalty of imprisonment for life. The standard non-parole presently prescribed only applies to offences committed after the commencement of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002.

4 Before saying anything further there is something I wish to address to the family and friends of Lisa Clymer, either those present now or those who may later read these remarks. It may seem strange or unfair to them that there is so much attention given to the personal circumstances of the offender and to the law and little mention made of Ms Clymer herself. I can understand that punishment and retribution are the purposes of sentencing that they may well want the Court to give the most attention. It would be entirely understandable that they might expect to see the depth of their loss and grief reflected in the sentence imposed. That is unlikely to occur simply because…

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 Valiukas

Details

AGLC: R v Valiukas [2009] NSWSC 808
Case: [2009] NSWSC 808
Decision Date: 14 August 2009

CaseChat Overview and Summary

In this case, the respondent, Valiukas, was convicted of murder and appealed against the sentence of imprisonment imposed upon him. The appeal was heard by the High Court of Australia, which was required to determine the appropriate sentence for the offence of murder in circumstances where the accused was found to be substantially impaired by abnormality of mind at the time of the offence but was not able to rely on this as a defence. The High Court was also required to consider the relevance of the state of mind at the time of the offence, as well as the principles of reduced moral culpability and general deterrence in the context of a significant delay between the offence and the sentence.

The High Court held that the sentencing judge had erred in failing to adequately consider the reduced moral culpability of the accused due to his substantial impairment by abnormality of mind. The Court found that the sentencing judge had placed too much emphasis on general deterrence and had not sufficiently taken into account the appellant's favourable subjective case and the delay of ten years between the offence and the sentence. The Court concluded that the sentence imposed was manifestly inadequate and ordered a retrial of the sentence before a different judge, with directions to take into account the appropriate factors, including the appellant's state of mind at the time of the offence, his reduced moral culpability, and the delay between the offence and the sentence. The Court also ordered that the appellant be held in protective custody during the retrial of the sentence.

Orders