Regina v CVH - [2004] NSWSC 205

CITATION: Regina v CVH [2004] NSWSC 205 revised - 30/10/2009

HEARING DATE(S): 09/03/2004

JUDGMENT DATE:
22 March 2004

JUDGMENT OF: O'Keefe J at 1

DECISION: Sentences.; (1) For manslaughter - imprisonment for eight and a half years to commence on 25 January 2002 and to expire on 24 June 2010. Parole period fixed at five years to commence on 25 January 2002 and to expire on 24 January 2007; (2) For assault - fixed term of imprisonment of two years to commence on 25 January 2002 and to expire on 24 January 2004. Sentence to be concurrent with sentence for manslaughter; (3) For affray - fixed term of imprisonment of one year to commence on 25 January 2002 and to expire on 24 January 2003. Sentence to be concurrent with sentence for manslaughter.

CATCHWORDS: Criminal law - Manslaughter - Assault - Affray - Plea of not guilty - Killing in company - Gang - Drugs - Revenge - Youth of prisoner - Remorse - Rehabilitation prospects - Educational courses in prison - Resentence - Statistics

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 (NSW) s 25, Regulation 6
Crimes Act 1900 s 24
Crimes (Sentnencing Proceedures) Act ss 21A, 24

CASES CITED: GDP (1991) 53 A Crim R 112
Wong v The Queen (2001) 207 CLR 584

PARTIES :
Regina
CVH - Prisoner

FILE NUMBER(S): SC 70012/01

COUNSEL: Mr G Rowling - Crown
Ms L Flannery - Prisoner

SOLICITORS: Director of Public Prosecutions (NSW)
Catherine Hunter - Prisoner

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’Keefe J

22 March 2004

70012/01 Regina v CVH

REMARKS ON SENTENCE
Background

1 On 25 February 2002 CVH (the prisoner) was convicted by a jury of the manslaughter of Tremain Watene, assault on GF, and affray, all of which offences occurred at Campsie on 10 November 1997 at Lahood’s Amusement and Snooker Centre (Lahood’s). His offences were committed in concert with MTN and others and formed part of a joint attack on each of the victims.

2 The prisoner’s sentence hearing took place on 26 April 2002. Because of delays in obtaining relevant reports in relation to the prisoner’s co-offender the sentences for both of them were not handed down until 26 August 2002. The prisoner received the following sentences:

(i) In respect of the manslaughter of Tremain Watene he was sentenced to imprisonment for 10 years to commence on 25 January 2002 and to expire on 24 January 2012. There was a finding of special circumstances and the non-parole period in respect of this offence was fixed at 6 years to commence on 25 January 2002 and to expire on 24 January 2008.

(ii) In respect of the assault on GF he was sentenced to a fixed term of imprisonment to commence on 25 January 2002 and to expire on 24 January 2004. The sentence in respect of this offence was ordered to be served concurrently with the sentence for manslaughter.

(iii) In respect of the offence of affray he was…

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 CVH

Details

AGLC: Regina v CVH [2004] NSWSC 205
Case: [2004] NSWSC 205
Decision Date: 22 March 2004

CaseChat Overview and Summary

In the case of Regina v CVH, the defendant was found guilty of manslaughter after a fatal affray in which he had participated. The incident involved a fight between two groups, one of which was armed. The defendant was a member of the group that was not armed. The Court of Appeal was tasked with reviewing the sentence imposed on the defendant, who was a young person at the time of the offence. The defendant appealed against the sentence, claiming it was excessive. The appeal centred on whether the original sentence was appropriate given the circumstances of the case, including the defendant's age, his remorse, and his prospects for rehabilitation.

The central legal issue before the court was whether the original sentence was manifestly excessive. The court was required to consider the principles of sentencing for manslaughter, particularly in cases involving young offenders, and the relevance of factors such as remorse, rehabilitation prospects, and educational opportunities available in prison. The court also had to assess whether the sentence was proportionate to the gravity of the offence and whether there were any errors in the consideration of mitigating factors during the original sentencing.

The court determined that the original sentence was not manifestly excessive. It noted the seriousness of the offence, the defendant's role in the affray, and the lethal nature of the weapons involved. The court acknowledged the defendant's youth, his expression of remorse, and the educational courses he had undertaken in prison. However, it held that the sentence was proportionate to the offence, taking into account the need for general deterrence and the protection of the community. The court found that the original sentence was within the range of appropriate penalties for the crime committed. The appeal was therefore dismissed.

Orders