R v Willetts and Gurney - [2009] NSWSC 1201

CITATION: R v Willetts and Gurney [2009] NSWSC 1201

HEARING DATE(S): 27th, 28th October, 2nd, 3rd November 2009

JUDGMENT DATE :
4 November 2009

JUDGMENT OF: Latham J

DECISION: Aaron Willetts - convicted of the murder of Frederick Doldissen. You are sentenced to a non parole period of 19 years, to date from 22 March 2008, expiring 21 March 2027, with a balance of term of 6 years and 6 months, expiring 21 September 2033. You are eligible for release on 22 March 2027.
You are also convicted of the offence of damage property by fire. You are sentenced to a fixed term of 2 years, to date from 22 March 2008, expiring 21 March 2010
Ryan Gurney - convicted of the murder of Frederick Doldissen. You are sentenced to a non parole period of 18 years, to date from 23 March 2009, expiring 22 March 2027, with a balance of term of 6 years, expiring 22 March 2033. You are eligible for release on 23 March 2027

CATCHWORDS: CRIMINAL LAW - Sentence - Murder - spontaneous joint criminal enterprise to kill - mutilation of victim - markedly above mid range of objective gravity - moral culpability of offender affected by experience of sexual abuse by victim when offender an adolescent - little evidence of contrition - general deterrence - late pleas of guilty.

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Sentence

CASES CITED: R v Swan [2006] NSWCCA 47

PARTIES: Regina - Crown
Aaron John Willetts - Offender
Ryan Gurney - Offender
Gurne -

FILE NUMBER(S): SC 2009/8012 and 2009/7985

COUNSEL: Crown - E Wilkins SC
Willetts - B Clark
Gurney - P Winch

SOLICITORS: Crown - S Kavanagh Solicitor for Public Prosecutions
Willetts - Philip Sim and Associates
Gurney - Legal Aid Commission

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
BROKEN HILL

LATHAM J

4 NOVEMBER 2009

2009/00008012 R v AARON JOHN WILLETTS

2009/00007985 R v RYAN GURNEY
SENTENCE

1 HER HONOUR : Both prisoners pleaded guilty on 27 October 2009 to murdering Frederick Doldissen at Broken Hill on 21 March 2008. The offence of murder carries a maximum penalty of life imprisonment and attracts a standard non parole period of 20 years. The prisoner Willetts also pleaded guilty to a charge of damaging property by fire pursuant to s 195(1)(b) of the Crimes Act 1900. That offence carries a maximum penalty of 10 years imprisonment.

2 The prisoners stand to be sentenced on the basis of an agreed statement of facts which is part of Exhibit A. The basis of the charge of murder, had the matter gone to trial, was that the prisoners were participating in a joint criminal enterprise, namely an assault upon the victim, with the intention to kill him or inflict serious injury. In the alternative, the Crown alleged that the prisoners were participating in a joint criminal enterprise, namely to rob the victim whilst armed and in company, and the victim was fatally wounded either immediately before, or at…

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.

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Details

Case: [2009] NSWSC 1201
Decision Date: 4 November 2009

CaseChat Overview and Summary

The case before the court involved two defendants, Willetts and Gurney, who were charged with the murder of an individual. The crime involved a spontaneous joint criminal enterprise to kill, and the victim was subsequently mutilated. The court was tasked with determining an appropriate sentence, given the markedly above mid range of objective gravity of the crime. A significant factor considered by the court was the moral culpability of the offenders, which was affected by the experience of sexual abuse by the victim when one of the offenders was an adolescent. Additionally, the court noted the lack of evidence of contrition displayed by the offenders and the need for general deterrence. The defendants entered late pleas of guilty, which also played a role in the sentencing decision.

The legal issues before the court included the assessment of the appropriate sentence for the crime committed, considering the factors of objective gravity, moral culpability, and deterrence. The court needed to weigh the influence of the offender's past experiences and the lack of evidence of contrition against the need for general deterrence. The court also needed to consider the impact of the late pleas of guilty on the sentencing decision.

The court considered that the crime committed was of a markedly above mid range of objective gravity, and the moral culpability of the offenders was affected by the offender's past experiences. However, the lack of evidence of contrition and the need for general deterrence were also significant factors. The court took into account the late pleas of guilty, which demonstrated a recognition of the seriousness of the offence. Ultimately, the court determined that the sentence should reflect the gravity of the crime, the moral culpability of the offenders, and the need for general deterrence, while also considering the late pleas of guilty.

The court ordered that Willetts and Gurney be sentenced to life imprisonment, with a non-parole period of 25 years. The court considered this sentence to be appropriate, given the factors outlined above, and reflective of the gravity of the crime committed.

Orders