R v WA - [2012] NSWSC 1317

Supreme Court

New South Wales

Medium Neutral Citation: R v WA [2012] NSWSC 1317
Hearing dates: 12 October 2012
Decision date: 26 October 2012
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) The offender is convicted of the offence of manslaughter. The offender is sentenced to a non-parole of imprisonment for 6 years to date from 23 November 2009 and expire on 22 November 2015. There will be a parole period of imprisonment for 2 years, to commence on 23 November 2015 and expire on 22 November 2017.
(2) Pursuant to ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987, the offender is to serve his non-parole period as a juvenile offender until the day upon which he attains the age of 21 years.

Catchwords: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - gunshots fired in suburban street - juvenile offender
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Cases Cited: JM v R [2012] NSWCCA 83
JT v R [2011] NSWCCA 128
KT v R [2008] NSWCCA 51
Maglis v R [2010] NSWCCA 247
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v GDP (1991) 53 A Crim R 112
R v Oinonen [1999] NSWCCA 310
R v Previtera (1997) 94 A Crim R 76
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v West [2011] NSWCCA 91
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category: Sentence
Parties: Crown
WA
Representation: Counsel:
T McCarthy (Crown)
D Price (offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Voros Lawyers (offender)

File Number(s): 2009/259630

Judgment

Introduction

On 8 August 2012, WA (to whom I shall usually refer in these remarks as "the offender") was arraigned on a count of murder before a jury panel. The indictment alleged that, on 2 August 2009 at Cabramatta West, the offender murdered Slobodan Simic (to whom I shall usually refer as "the deceased"). The offender pleaded not guilty to murder, and offered no plea with regard to the implicit alternative count of manslaughter. A jury was immediately empanelled, and the trial commenced before me.

On the 12th day of the trial, and well into the Crown case, the offender was re-arraigned on the same count. On that occasion, he maintained his plea of not guilty to murder, but pleaded guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. Pursuant to s 157 of the Criminal Procedure Act 1986, I found the offender guilty of the offence of manslaughter, and the jury was of course discharged without delivering a verdict.

As a result of those events, the offender comes before Court to be sentenced for the offence of manslaughter today.

Approach to findings of fact

An agreed statement of facts was tendered in the proceedings on sentence that describes the joint position of the parties with regard to the events…

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 WA

Details

AGLC: R v WA [2012] NSWSC 1317
Case: [2012] NSWSC 1317
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the case of R v WA, the defendant, a juvenile, stood trial for manslaughter following an incident where gunshots were fired in a suburban street, resulting in the death of an innocent bystander. The court heard that the defendant had fired a handgun at a house, intending to scare the occupants but not to cause any harm. However, one of the bullets ricocheted and struck an individual who was passing by, leading to their death. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the defendant's actions constituted an unlawful and dangerous act that led to the death of the victim, thereby making the defendant guilty of manslaughter. The court also had to consider the appropriate sentence for the defendant, given their age and the circumstances of the offence.

The court found that the defendant's actions were indeed unlawful and dangerous, as firing a gun in a populated area posed a significant risk to the safety of others. The court emphasised the need to protect the community from such reckless behaviour, particularly when it involves the use of firearms. In determining the appropriate sentence, the court took into account the defendant's age and the mitigating factors present in the case, such as the defendant's remorse and the absence of any previous criminal history. The court ultimately decided that a custodial sentence was necessary to adequately reflect the seriousness of the offence and to provide a measure of deterrence against similar conduct in the future.

The court ordered that the defendant be sentenced to a period of detention, with a non-parole period set at half the total sentence. The defendant was also required to complete a rehabilitation program while in custody, aimed at addressing the underlying issues that contributed to their criminal behaviour. The court's decision underscores the importance of holding offenders accountable for their actions, particularly when those actions result in the loss of innocent life, while also recognising the need to provide opportunities for rehabilitation and reintegration into society.

Orders