R v Welsh - [2019] ACTSC 344

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Welsh
Citation:	[2019] ACTSC 344
Hearing Date:	2 and 5 December 2019
DecisionDate:	10 December 2019
Before:	Mossop J
Decision:	See [21]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender less culpable than one other offender – offender more culpable than one other offender – significant criminal history – guarded prospects for rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT), s 15
Cases Cited:	R v Booth [2019] ACTSC 345 R v Vickerstaff (No 2) [2019] ACTSC 343
Parties:	The Queen (Crown) Dean Welsh (Offender)
Representation:	Counsel R Christensen (Crown) J Moffett (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender)
File Number:	SCC 273 of 2018

MOSSOP J:

Introduction

The offender, Dean Phillip Welsh, pleaded guilty to one count of manslaughter by joint commission contrary to s 15 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 20 years’ imprisonment.

Facts and objective seriousness

He is being sentenced at the same time as two co-offenders and the reasons that I now give must be understood in the context of the reasons given in those cases: R v Vickerstaff (No 2) [2019] ACTSC 343; R v Booth [2019] ACTSC 345. The facts upon which Mr Welsh is to be sentenced are recorded in an agreed statement of facts. I have summarised those facts in my decision in R v Vickerstaff (No 2). I adopt what I have said there.

In short, Mr Welsh along with Colin Booth and Graeme Vickerstaff attended the house of the victim, Bobby Allan, in the early hours of the morning of 17 December 2017. When the front door was opened Mr Vickerstaff had a violent altercation with Mr Allan in which he deployed a baseball bat to strike him on the head two or three times. Mr Allan escaped from the house and went down the road to find assistance. He ultimately died from a combination of factors which would not have occurred without the assault. Mr Welsh opportunistically stole some items of value from the premises after Mr Allan had been assaulted and removed the baseball bat that had been involved in the assault.

Mr Welsh’s involvement was that he was at the door with Mr Vickerstaff in circumstances where he prevented Mr Allan from escaping in that direction. He did not however have any physical contact with Mr Allan. His culpability is substantially less than that of Mr Vickerstaff and somewhat greater than that of Mr Booth.

I have taken into account the victim impact statements which are referred to in my decision in Vickerstaff (No 2).

Subjective circumstances

The subjective circumstances of Mr Welsh are described in the pre-sentence report. To the extent to which the evidence in that report is inconsistent with…

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 Welsh

Details

AGLC: R v Welsh [2019] ACTSC 344
Case: [2019] ACTSC 344
Decision Date: 10 December 2019

CaseChat Overview and Summary

The case of R v Welsh involved the sentencing of three co-offenders who had jointly committed a manslaughter offence. The co-offenders were present in the court where the sentencing was to take place. The offender, Welsh, was less culpable than one co-offender but more culpable than the third. Welsh had a significant criminal history and his prospects for rehabilitation were guarded. The court was tasked with determining an appropriate sentence that reflected Welsh's degree of culpability, criminal history, and prospects for rehabilitation.

The legal issues before the court were the determination of an appropriate sentence for Welsh, taking into account the varying degrees of culpability among the co-offenders, the offender's criminal history, and the offender's prospects for rehabilitation. The court was required to balance these factors in light of the principles of justice and proportionality in sentencing. The court also had to consider the sentencing of the other co-offenders and ensure that the sentences were proportionate to the respective degrees of culpability.

In delivering its judgment, the court considered the nature of the offence, the offender's criminal history, and the prospects for rehabilitation. The court acknowledged that Welsh was less culpable than one co-offender but more culpable than another. The court recognised that Welsh's criminal history and guarded prospects for rehabilitation were relevant factors to be considered in determining the appropriate sentence. The court ultimately determined that an appropriate sentence for Welsh would reflect his degree of culpability, criminal history, and prospects for rehabilitation. The court also considered the need to maintain public confidence in the criminal justice system and the need to deter the offender and others from committing similar offences.

The court ordered that Welsh be sentenced to imprisonment for a term that reflected his degree of culpability, criminal history, and prospects for rehabilitation. The specific term of imprisonment was not disclosed in the judgment but was referred to as the term set out in [21]. The court also ordered that the sentences of the other co-offenders be determined in light of the principles of justice and proportionality in sentencing.

Orders

Orders of the court

See [21]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.