R v Wills - [2005] NSWSC 368

CITATION:
R v Wills [2005] NSWSC 368

HEARING DATE(S): 11-21 October, 17 December 2004, 18 February, 1 April 2005

JUDGMENT DATE :

22 April 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Studdert J

DECISION:
Imprisonment for a term of eighteen years to date from 29 October 2002 and to expire on 28 October 2020. A minimum term of fourteen years to date from 29 October 2002 and to expire on 28 October 2016. The first date upon which the prisoner is to be eligible for release upon parole is 28 October 2016.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act, ss 21A, 44

CASES CITED:
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255
R v Lawrence [2005] NSWCCA 91
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48

PARTIES:
R v Russell Clement Wills

FILE NUMBER(S):
SC 2003/72

COUNSEL:
Crown: G. Lerve (11-21 October, 17 December 2004)
B. Smith (18 February 2005)
M. Hobart (1 April 2005)
Prisoner: M. Paish

SOLICITORS:
Crown: Office of the Director of Public Prosecutions
Prisoner: R.F. Berganin & Co.

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 22 April 2005

2003/72 REGINA v RUSSELL CLEMENT WILLS
SENTENCE

1 HIS HONOUR: Russell Clement Wills stood trial charged with the murder of Hans Hoch on 16 July 2002. The jury returned a verdict of guilty on 21 October 2004 and evidence and submissions on sentence were received on 17 December 2004. However, counsel for the prisoner sought and was granted an adjournment until 18 February 2005 in order to obtain a psychiatric assessment. On that date another adjournment was sought since the psychiatrist’s report was not available and an adjournment was granted until 1 April 2005 when the report from Dr Nielssen was tendered (Exhibit 2) and Dr Nielssen was called to give evidence.

2 The deceased lived at Unit 21, Block B, Northcott Towers, Belvoir Street, Surry Hills. He was found dead on the floor of a bedroom in that unit on 17 July 2002. Dr Cala, who examined the body at 8.00 pm on that day, fixed the time of death as being at least twelve hours earlier and up to thirty hours previously. Indeed, it may well have been longer than thirty hours previously. The deceased was, by appearance, aged in his sixties, and he was of slight build. He weighed fifty-two kilograms and was 167 cm tall.

3 The post mortem examination later conducted by Dr Cala revealed extensive injury to the face and head, and lacerations, bruises and abrasions to the trunk, front and back, and to the arms and legs. Both ears were severely bruised. An internal examination revealed a fracture of the larynx and of the hyoid bone. There were a number of fractured ribs: the left 2nd-11th ribs laterally, and the right 2nd and 4th-12th ribs laterally. There was extensive haemorrhage…

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 Wills

Details

AGLC: R v Wills [2005] NSWSC 368
Case: [2005] NSWSC 368
Decision Date: 22 April 2005

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Regina v Russell Clement Wills involved the sentencing of Russell Clement Wills for the murder of Hans Hoch. The court had to determine the appropriate sentence for the crime, considering both the objective and subjective features of the case. The legal issues included the appropriate weight to give to general deterrence due to the prisoner's mental state and whether there were special circumstances that warranted a longer non-parole period. The court considered the evidence of the severe and unexplained attack on the deceased, the lack of an explanation for the crime, and the prisoner's background, including his history of alcohol abuse and mental health issues. The court concluded that the appropriate sentence was eighteen years imprisonment, with a minimum term of fourteen years before the prisoner would be eligible for parole. The judgment emphasised the seriousness of the crime and the need for appropriate punishment and protection of the community.

Orders