R v WKD and R v MJN - [2005] NSWSC 694

CITATION:
R v WKD and R v MJN [2005] NSWSC 694
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23.2.05, 24.2.05, 25.2.05, 28.2.05,
1.3.05, 2.3.05, 3.3.05, 7.3.05, 8.3.05, 9.3.05, 29.3.05,15.3.05, 29.3.05

JUDGMENT DATE :

29 June 2005

JURISDICTION:
Criminal

JUDGMENT OF:
Mathews AJ

DECISION:
See pages 15 and 16 of Sentence judgment

LEGISLATION CITED:
Crimes (Detention After Arrest) Regulations 2998
Evidence Act 1995
Crimes (Sentencing Procedure) Act 1999
Children (Criminal Proceddings) Act 1987

CASES CITED:
R v Fernando(1992) 76 A Crim R 58

PARTIES:
Regina - Crown
Accused - WKD
Accused - MJN

FILE NUMBER(S):
SC 2004/25; 2004/39

COUNSEL:
Regina: W Roser
WKD: P Zarah SC
MJN: A Webb

SOLICITORS:
S C Kavanagh - Crown
Bell and Partners - WKD
S E O'Connor - MJN

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
44 and 45/04

LOWER COURT JUDICIAL OFFICER :
Magistrate Corbett

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

MATHEWS AJ

Wednesday 29 June 2005

2004/25 REGINA v W K D
2004/39 REGINA v M J N

SENTENCE

1 HER HONOUR: On 19 February 2003 George Brunker sustained extremely serious head injuries during an altercation - to use a neutral word - at his home at Tregear. A number of his belongings were stolen from his home. Mr Brunker was found several hours later and was taken to hospital in a profoundly unconscious state. Some five weeks later, on 27 March, he died. By this time it was known that the two prisoners, William Dixon and MJN, had been responsible for his injuries. They were subsequently charged with murder.

2 On 23 February 2005, the prisoners were arraigned before myself and a jury. They pleaded not guilty to murder and to aggravated robbery. They pleaded guilty to stealing property from Mr Brunker's dwelling, which was an alternative to the robbery charge.

3 On 9 March 2005, the jury found both accused not guilty of murder but guilty of manslaughter. Both were acquitted of aggravated robbery.

4 A significant preliminary issue at the trial was whether the injuries sustained by Mr Brunker on 19 February were, in a legal sense, causative of his death. Considerable evidence was called on this matter, which served to emphasise the extreme violence and force with which Mr Brunker had been struck. The jury's verdict of guilty of manslaughter shows that they accepted the nexus between these injuries and Mr Brunker's death. There was ample evidence to support this finding.

5 There were a number of possible routes through which the jury could have reached their verdict of manslaughter in relation to each of the accused. The issues were complex and there were no less than six different scenarios, described during the trial as "options A to F", which were presented to the jury in relation to the murder charge, some of which contained their own alternative scenarios. The most significant dispute in the sentencing process…

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 WKD and R v MJN

Details

AGLC: R v WKD and R v MJN [2005] NSWSC 694
Case: [2005] NSWSC 694
Decision Date: 29 June 2005

CaseChat Overview and Summary

In the case of R v WKD and R v MJN, the Supreme Court of New South Wales was tasked with sentencing the two accused, William Dixon (WKD) and MJN, for their roles in the manslaughter of George Brunker, following a violent altercation at Brunker's home. The accused were also found guilty of stealing property from Brunker's home. The legal issues before the court included determining the factual findings regarding the extent of each prisoner's criminality, particularly whether either or both of them contemplated the use of violence prior to going to Brunker's home. The court also needed to consider the subjective features of each prisoner, including their backgrounds, age, remorse, and criminal history, in determining the appropriate sentences.

The court found that the only available scenario consistent with the jury's verdict of manslaughter was one of excessive self-defence on the part of Dixon, who had intended to assault Brunker but went too far in defending himself. The court determined that Dixon had a much higher level of culpability than MJN, who was influenced by his older cousin and played a lesser role in the assault. Both prisoners were sentenced for the charges of manslaughter and stealing, with the sentences being partially concurrent and partially cumulative. Dixon received a non-parole period of seven and a half years for manslaughter and one and a half years for stealing, while MJN received a non-parole period of two and a half years for manslaughter and one year for stealing. The court also directed that MJN's sentence be served as a juvenile offender.

In summary, the court found that Dixon was the primary perpetrator in the assault on Brunker, while MJN played a lesser role. The court took into account the various factors relevant to sentencing, including the circumstances of the offence, the backgrounds of the accused, and their level of culpability. The sentences imposed reflected the court's consideration of these factors and the principle of totality.

Orders