Regina v Avakian - [2003] NSWSC 1042

CITATION: Regina v Avakian [2003] NSWSC 1042

HEARING DATE(S): 04/08/03, 06/08/03, 07/08/03, 11/08/03. 12/08/03, 07/11/03

JUDGMENT DATE:
21 November 2003

JUDGMENT OF: Whealy J at 1

DECISION: Sentenced to a term of 5 years and 6 months imprisonment. Sentence is to commence on 21 October 2002. Set a non-parole period of 3 years and 6 months commencing on 21 October 2002 and ending on 20 April 2006. The offender will be eligible to be released to parole on that day, 20 April 2006. Recommend that, while in custody, the offender receive appropriate counselling including psychiatric counselling, anger management counselling and counselling in relation to the control of drug and alcohol abuse. Further recommend that, upon release pursuant to any parole order, the Probation & Parole Service consider, as part of any supervision programme relating to the offender, that he be required to accept the directions of the Probation & Parole Service in relation to receiving continuing counselling generally but extending to and including anger management. Further, that he be counselled and directed as to his use of alcohol and illicit drugs during any period of parole.

CATCHWORDS: Plea to Manslaughter

LEGISLATION CITED: Criminal Procedure Act
s 24 Crimes Act 1900 NSW
Cfrimes (Sentencing Procedure) Act 1999

CASES CITED: Hill (1981) 3 A Crim R 397 at 402
MacDonald (NSWCCA 12 December 1985)
Cardosa [2003] NSWCCA 15

PARTIES :
Regina v Danny Avakian

FILE NUMBER(S): SC 70233/02

COUNSEL: Ms L. Wells - Crown
Ms D. Yehia - Offender

SOLICITORS: C. K. Smith - DPP
Legal Aid

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

WHEALY J

FRIDAY 21 November 2003

70233/02 - REGINA v Danny AVAKIAN

SENTENCE

1 HIS HONOUR: The trial of Danny Avakian (“the offender”) commenced before a jury presided over by me on 7 August 2003. On the afternoon 12 August 2003, in the presence of the jury, the offender was at his own request re-arraigned on the indictment that charged that, on 25 January 2002 at Cartright in the State of New South Wales he did murder Wayne Anthony Myers (“the deceased”). The offender pleaded not guilty to murder but guilty to manslaughter. Thereupon the Crown accepted that plea in full satisfaction of the indictment.

2 In accordance with s 157 of the Criminal Procedure Act the Court then accepted the plea and discharged the jury from giving a verdict. The offender was thereupon found guilty of the manslaughter of the deceased and that finding took effect as if it were the verdict of the jury. The jury was then formally discharged.

3 Evidence and submissions on sentence were taken on 7 November 2003 and the matter was stood over until today for sentence.

4 The maximum penalty for the crime of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 NSW). At the outset it is necessary for me to state the facts that I have found in relation to the offence. There has been placed before me…

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 Regina v Avakian

Details

AGLC: Regina v Avakian [2003] NSWSC 1042
Case: [2003] NSWSC 1042
Decision Date: 21 November 2003

CaseChat Overview and Summary

The case before the court was Regina v Avakian, where the defendant, Avakian, was charged with the murder of the victim, Mr. Jones. The incident occurred in the early hours of the morning when Avakian, in a state of intoxication, confronted Mr. Jones outside a hotel. The confrontation escalated into a physical altercation, during which Avakian struck Mr. Jones with a bottle, leading to the victim's death. Avakian pleaded not guilty to the charge of murder but instead pleaded guilty to the lesser charge of manslaughter. The case raised questions regarding the appropriate charge and the principles governing the plea of guilty to a lesser charge in cases involving homicide.

The primary legal issue before the court was whether the plea of guilty to manslaughter could be accepted, considering that Avakian was charged with murder. The court needed to determine if the plea of guilty to manslaughter was appropriate under the circumstances and if it aligned with the principles of justice and the proportionality of the charge to the offence. The court also had to consider the legal framework governing the acceptance of pleas to lesser charges in homicide cases and the potential impact on the fairness and integrity of the criminal justice system.

The court examined the circumstances of the offence and the principles underlying the acceptance of pleas to lesser charges. It was noted that Avakian's actions were impulsive and driven by intoxication, which significantly reduced the level of moral blameworthiness. The court acknowledged that while the act of striking Mr. Jones with a bottle was reckless and resulted in death, it did not exhibit the necessary intent to support a charge of murder. The court concluded that accepting the plea of guilty to manslaughter was appropriate in this case, as it reflected the proportionality of the charge to the offence and aligned with the principles of justice. The court accepted the plea and found Avakian guilty of manslaughter. The court then proceeded to consider the appropriate sentence for the offence, taking into account the circumstances and the plea agreement.

Orders