Regina v David Eric Ballangarry - [2001] NSWSC 642

CITATION: Regina v David Eric Ballangarry [2001] NSWSC 642

FILE NUMBER(S): SC 70015/01

HEARING DATE(S): 18 July 2001

JUDGMENT DATE:
27 July 2001

PARTIES :

Regina
David Eric Ballangarry

JUDGMENT OF: Sully J at 1

COUNSEL : P. Dare - Crown
P. Rosser - Accused

SOLICITORS: S. E. O'Connor - Crown
Many Rivers Aboriginal Legal Service

CASES CITED: Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477
Regina v Dargin [2000] NSWSC 710
Regina v Thomson (2000) 49 NSWLR 383

DECISION: Imprisonment for 17 years with a non-prole period of 11 years. The sentence and the non-prole period will commence on 22 December 2000. The non-prole period will expire on 21 December 2011.

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Friday 27 July 2001

70015/01 - REGINA v DAVID ERIC BALLANGARRY

ON SENTENCE

1 HIS HONOUR: On 1 June 2001 Mr. David Eric Ballangarry, (“the prisoner”), pleaded guilty before Barr J of this Court to the murder, on or about 22 December 2000, of Faye Ruth Caldwell. It is accepted by the Crown that the plea was entered at what was, in the circumstances of the particular case, the first real opportunity for the entering of the plea.

2 On Wednesday 18 July instant, I heard submissions on sentence; thereafter remanding the prisoner in custody until today for the passing of sentence.

3 The prisoner and the deceased were, at the relevant time, members of the Aboriginal community in Bowraville. They were not in a stable de facto relationship; but for some years they had been intermittently in such a relationship. The relationship was a volatile one; and it was not infrequently a violent one. In December 2000 the prisoner was living in Bowraville with his sister Cynthia, and his uncle, Mr. Lawrence Ballangarry. On 21 December the prisoner visited a cousin, Mrs. Rita Chapman, who lived at an address in the same street as, and very near to, the prisoner’s home. In the early afternoon, and at about 1 p.m., the prisoner and Mrs. Chapman went to the Royal Hotel in Bowraville. There, by chance, they met the deceased.

4 The prisoner and the two women drank together until it was dark. They then returned to the prisoner’s home; and, in company with Mr. Lawrence Ballangarry, they continued drinking alcohol.

5 Presently, an argument broke out between the prisoner and the deceased. The argument began with accusations made by the prisoner to the deceased that she was having some kind of an affair with a certain man. The deceased denied the accusations. What then happened is described as follows in paragraphs 7, 8 and 9 of the statement given by Mrs. Chapman to the police:

“7. She was sitting on the concrete verandah, Laurie was on the mattress in the carport, Davo was standing, and he just punched Faye in the face where she sat. I jumped up and said, “Don’t go fucking hitting her, leave her alone”. Davo pushed me in the…

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 David Eric Ballangarry

Details

AGLC: Regina v David Eric Ballangarry [2001] NSWSC 642
Case: [2001] NSWSC 642
Decision Date: 27 July 2001

CaseChat Overview and Summary

The case of Regina v David Eric Ballangarry was heard in the Supreme Court of New South Wales, Criminal Division, before Sully J. The defendant, David Eric Ballangarry, pleaded guilty to the murder of Faye Ruth Caldwell on 22 December 2000. The court was required to decide on the appropriate sentence for the defendant, taking into consideration several legal issues, including the nature of the offence, the defendant's intent at the time of the crime, and the mitigating and aggravating factors in the case.

The court acknowledged the brutality and ferocity of the attack on the victim, which led to her death. It was determined that the defendant had, at the very least, an intent to inflict grievous bodily harm. The court also considered the defendant's personal history, including his diagnosed mild developmental disability, alcohol dependence syndrome, and lack of lawful employment. The defendant's intoxication at the time of the crime was not considered to be a significant mitigating factor, as his history of alcohol abuse and violent conduct was well-established. The court also took into account the discount for the defendant's plea of guilty and his expressed remorse for the crime.

Considering the objective and subjective matters, the court decided on a sentence of imprisonment for 17 years, with a non-parole period of 11 years. The sentence and non-parole period were to commence on 22 December 2000, the date of the murder, and would expire on 21 December 2011. This decision aimed to balance the principles of retribution, deterrence, and the sanctity of human life while also considering the defendant's personal circumstances and prospects for rehabilitation.

Orders