R v Weston (No 3) - [2017] NSWSC 1385

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Weston (No 3) [2017] NSWSC 1385
Hearing dates: 13 – 17, 20 – 22, 24, 27 – 28 February 2017, 1 – 3 March 2017, 4, 18 August 2017, 1 September 2017, 3 October 2017
Date of orders: 11 October 2017
Decision date: 11 October 2017
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) Conviction recorded;

(2) Sentence imposed of non-parole period of 25 years and 6 months, commencing 18 March 2016 and concluding 17 September 2041, the balance of term of imprisonment, being a further 8 years and 6 months, expiring on 17 March 2050.
(3) First eligible for release on parole on 17 September 2041
Catchwords: CRIMINAL LAW – Sentence – shooting murder by bikie gang – initially retribution for relationship with ex-partner of bikie official – then as punishment for attempt to stand up to gang – reasonable possibility of no intention to murder – strong subjective circumstances – not worst case – sentence of determinate period imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(c), 21A(2)(i), 21A(2)(n)
Cases Cited: Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unrep)
Category: Sentence
Parties: Regina (Crown)
John Richard Weston (Offender)
Representation:
Counsel:
T Bailey (Crown)
B Murray (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Archbold Legal (Offender)

File Number(s): 2015/00181328
Publication restriction: NON-PUBLICATION ORDER RE identity or any matter that would identify witnesses A to G

REMARKS ON SENTENCE

HIS HONOUR: After trial by jury, John Weston was found guilty of the murder of Laurence Starling on 24 July 2014. The trial was heard over a period of just over two weeks commencing 13 February 2017. The sentencing has been delayed by the offender, Mr Weston, changing his legal representation. The proceedings on sentence occurred on 3 October 2017.

The Process of Sentencing

To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Thus, even, as here, where one is speaking of murder as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where, in that range of seriousness, this offence fits.
It is only for the worst category of offences that one imposes the maximum sentence fixed by the Parliament. A sentence of life imprisonment is the maximum sentence for murder. In New South Wales, life imprisonment means no parole and no release. Whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. Unfortunately, one can always imagine a worse scenario. Nevertheless, the Court must objectively assess the features 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 Weston (No 3)

Details

AGLC: R v Weston (No 3) [2017] NSWSC 1385
Case: [2017] NSWSC 1385
Decision Date: 11 October 2017

CaseChat Overview and Summary

The case before the court was an appeal against sentence, where the appellant, a member of a bikie gang, was convicted of murdering a man by shooting him. The murder was initially motivated by the victim's relationship with an ex-partner of a bikie official. Later, it was also seen as punishment for the victim's attempt to stand up to the gang. The court had to consider the legal principles governing the sentencing of murder and the specific circumstances of the crime. The appellant argued that there was a reasonable possibility that he did not intend to murder the victim and that the circumstances were subjectively strong. The court needed to determine whether the sentence imposed was appropriate given these factors.

The court found that the appellant had been a participant in the planning and execution of the murder, which was a brutal and violent act. However, it acknowledged that there was a reasonable possibility that the appellant did not intend to murder the victim at the time of the shooting. The court considered the subjective circumstances of the crime, including the appellant's limited criminal history and the fact that the murder was not the worst case of its kind. The court also noted that the appellant had shown remorse and had cooperated with the investigation. Ultimately, the court concluded that the sentence of a determinate period was appropriate, taking into account all the circumstances of the case.

The court emphasised that the sentence should reflect the seriousness of the crime and the need to deter similar offences in the future. However, it also recognised that the sentence should not be excessive or disproportionate to the circumstances of the crime. The court found that the sentence imposed was not excessive or disproportionate, given the appellant's participation in the crime and the need to deter similar offences. The court also noted that the appellant had shown remorse and had cooperated with the investigation, which were mitigating factors that should be taken into account.

The court dismissed the appeal against sentence and upheld the sentence of a determinate period imposed by the trial judge. The court found that the sentence was appropriate, taking into account all the circumstances of the case. The court emphasised that the sentence should reflect the seriousness of the crime and the need to deter similar offences in the future, but also recognised that the sentence should not be excessive or disproportionate to the circumstances of the crime. The court found that the sentence imposed was not excessive or disproportionate, given the appellant's participation in the crime and the need to deter similar offences. The court also noted that the appellant had shown remorse and had cooperated with the investigation, which were mitigating factors that should be taken into account.

Orders