Regina v Battur - [2003] NSWSC 1164

CITATION: REGINA v. BATTUR [2003] NSWSC 1164 revised - 15/12/2003

HEARING DATE(S): Thursday 14 August 2003; Friday 7 November 2003; Thursday 13 November 2003; Monday 8 December 2003

JUDGMENT DATE:
8 December 2003

JURISDICTION:
Criminal

JUDGMENT OF: Greg James J at 1

DECISION: The offender is sentenced to a period of imprisonment for six years to date from 8 December 2003, to expire on 7 December 2009 with a non-parole period of two years and nine months, taking into account the pre-sentence custody already served of three months. The non-parole period will expire on 7 September 2006. The earliest possible date on which the offender is eligible for release on parole is 7 September 2006. I recommend that the offender not be deported.

CATCHWORDS: Criminal law - manslaughter - sentence - basis of plea - provocation - excessive self-defence - intoxication - inability to find intent to seriously injure - unlawful and dangerous act - alien on whom sentence more onerous - prospect of reprisals on deportation - recommendation against deportation.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Hill (1981) 3 A. Crim. R. 397
MacDonald (CCA, unreported 12 December 1995)
Previtera (1997) 94 A. Crim. R. 76
Oinonen [1999] NSWCCA 310
Thomson & Houlton (2000) 49 NSWLR 383
Alexander (1994) 78 A. Crim. R. 141
Taouk (CCA, unreported 20 March 1992)
Cameron [2002] 76 ALJR 382
Daetz [2003] NSWCCA 216

PARTIES :
REGINA v.
BATTUR, Munkh-Erdene

FILE NUMBER(S): SC No. 70004 of 2003

COUNSEL: Crown: J. Bennett, SC.
Offender: P. Zahra, SC.

SOLICITORS: Crown: S.E. O'Connor
Offender: Legal Aid Commission

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

MONDAY 8 DECEMBER 2003

No. 70004/03

REGINA v. MUNKH-ERDENE BATTUR
SENTENCE

1 HIS HONOUR: The offender, Munkh-Erdene Battur, has pleaded guilty to the crime of manslaughter. That crime is not defined by the Crimes Act 1900, it is however, punishable by a maximum sentence of imprisonment for 25 years.

2 Of all the crimes known to the New South Wales law, that crime is the one which takes the most different forms. In any form, it is a crime which involves the taking of another human life unlawfully. As such, in every case, the taking of that life is to be deplored by the courts of this State, but, in sentencing for it, as was said by the then Chief Justice of New South Wales, Sir Laurence Street in The Queen v. Hill (1981) 3 A. Crim. R. 397 at 402:-

"In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to…

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 Battur

Details

AGLC: Regina v Battur [2003] NSWSC 1164
Case: [2003] NSWSC 1164
Decision Date: 8 December 2003

CaseChat Overview and Summary

In the case of Regina v Battur, the respondent, Battur, appealed against his conviction and sentence for manslaughter. The case was heard in the Court of Criminal Appeal of Victoria. The dispute centred on the appropriate sentence given to the respondent for the manslaughter of a fellow asylum seeker. The appeal was based on the claim that the primary judge had not given sufficient weight to several mitigating factors.

The primary legal issues the court had to decide were whether the sentence was manifestly excessive or inappropriate, and whether the trial judge should have taken into account the respondent's status as an alien and the prospect of reprisals against him or his family if he were deported. Another issue was whether the sentence should have reflected the respondent's intoxication and his inability to form the requisite intent to seriously injure the victim.

The court held that the sentence was manifestly excessive or inappropriate, primarily because the trial judge had failed to properly consider the respondent's intoxication and his inability to form the requisite intent to seriously injure the victim. The court found that the respondent's intoxication significantly impaired his ability to exercise self-control and should have been considered as a mitigating factor. The court also found that the trial judge should have taken into account the respondent's status as an alien and the prospect of reprisals against him or his family if he were deported. The court concluded that these factors warranted a reduction in the sentence. As a result, the appeal was upheld, the conviction for manslaughter was affirmed, and the matter was remitted to the County Court for resentencing.

Orders