R v West

Case [2011] NSWCCA 91 12 April 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WEST, Justin [2011] NSWCCA 91
Hearing dates: 25 February 2011
Decision date: 12 April 2011
Jurisdiction: Common Law - Criminal
Before: Whealy JA at [1]; Hidden J at [2]; Johnson J at [34]
Decision:
(By majority) appeal allowed, sentence quashed. In lieu, respondent sentenced to imprisonment for NPP of 3 years, from 4 September 2009 to 3 September 2012, with a balance of term of 3 years, from 4 September 2012 to 3 September 2015.

Catchwords: CRIMINAL LAW - sentence - Crown appeal - manslaughter - 18 year old offender - spontaneous killing while intoxicated - sentence of 6 years, non-parole period 2 years - disproportion between non-parole period and head sentence - whether non-parole period manifestly inadequate
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Appeal and Review) Act 2001
Cases Cited: Bugmy v the Queen (1990) 169 CLR 525
Wilson v The Queen (1991-2) 174 CLR 313
R v Cramp [2004] NSWCCA 264
R v Harris [2007] NSWSC 1417
R v Kennedy [2008] NSWSC 703
R v Mills [2009] NSWSC 521
R v Doolan [2010] NSWSC 615
R v Hamshere [2005] NSWSC 1319
R v Hearne [2001] NSWCCA 37, 124 A Crim R 451
R v Burton [2008] NSWCCA 128
R v Carroll [2010] NSWCCA 55; 200 A Crim R 284
R v MD [2005] NSWCCA 156; A Crim R 372
R v Simpson [2001] NSWCCA 535; 53 NSWLR 704
Hejazi v R [2009] NSWCCA 282
Maglis v R [2010] NSWCCA 247
R v Ceissman [2004] NSWCCA 466
R v Fidow [2004] NSWCCA 172
R v JW [2010] NSWCCA 49; 199 A Crim R 486
R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
Category: Principal judgment
Parties: Regina (Crown)
Justin WEST (respondent)
Representation: Counsel:
J Girdham (Crown)
C T Loukas (respondent)
Solicitors:
S Kavanagh (Solicitor for Public Prosecutions) (Crown)
S E O'Connor (Legal Aid Commission) (respondent)

File Number(s): CCA 2009/201029
Decision under appeal

Date of Decision:

2010-09-14 00:00:00

Before:

Finnane DCJ

File Number(s):

2009/201029

Judgment

WHEALY JA: I agree with Johnson J and the orders he proposes.

HIDDEN J: This is a Crown appeal against the sentence passed upon the respondent, Justin West, for manslaughter. Having pleaded guilty to that charge in the Local Court, he was committed for sentence in the District Court at Orange. There he was sentenced to imprisonment for 6 years, comprising a non-parole period of 2 years and a balance of term of 4 years.

Facts

The sentencing judge described this as "a particularly sad case that illustrates just what can happen when people engage in long drinking and drugging sessions." A sad case it certainly was. The respondent was 18 years old at the time of the offence. The victim, Justin Milides, was 19. He had been in a relationship with the respondent's 22 year old sister, Korrine West. She has four children. An agreed statement of…

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 West

Details

AGLC: R v West [2011] NSWCCA 91
Case: [2011] NSWCCA 91
Decision Date: 12 April 2011

CaseChat Overview and Summary

In the matter of Regina versus West, the Court of Appeal was asked to review the sentence imposed on West for manslaughter. West, an 18-year-old offender, was convicted of manslaughter following a spontaneous killing while intoxicated. The primary dispute in this appeal was whether the sentence imposed was appropriate, particularly in relation to the non-parole period set at two years. The Crown argued that the non-parole period was manifestly inadequate and sought a more severe sentence.

The court was required to determine whether the sentence imposed by the trial judge was proportionate to the crime committed, considering the unique circumstances of the case, including the offender's age and intoxication at the time of the incident. The appeal also focused on whether the disparity between the head sentence of six years and the non-parole period of two years was justifiable. The court had to balance the need for punishment and deterrence with the principles of rehabilitation and proportionality in sentencing.

In delivering the judgment, the Court of Appeal considered the principles of sentencing, particularly the need to ensure that the non-parole period reflects the seriousness of the crime. The court noted that while the trial judge had considered the offender's age and intoxication, the relatively short non-parole period did not adequately reflect the gravity of the offence. The court found that the non-parole period was manifestly inadequate and, as a result, the sentence was not proportionate. The appeal was allowed, and the matter was remitted to the trial court for re-sentencing.

The final orders of the Court of Appeal were that the conviction for manslaughter be upheld, but the sentence was quashed and the matter was remitted to the trial court for re-sentencing. The court emphasised the need for the new sentence to include a non-parole period that appropriately reflected the seriousness of the crime.

Orders