Regina v Graham - [2000] NSWSC 1033

CITATION: Regina v Graham [2000] NSWSC 1033

FILE NUMBER(S): SC 70078/99

HEARING DATE(S): 21/08/00; 23/08/00; 24/08/00; 25/08/00; 28/08/00; 30/08/00; 31/08/00; 01/09/00; 04/09/00; 05/09/00; 06/09/00; 20/10/00

JUDGMENT DATE: 10 November 2000

PARTIES :

Regina v Kane Graham

JUDGMENT OF: Whealy J at 1

COUNSEL : T. Hoyle SC - Crown
P. Hamill - Prisoner

SOLICITORS: S. E. O'Connor - DPP
Nyman Gibson & Company - Prisoner

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Isaacs (1997) 41 NSWLR 374 at 378
R v Olbrich (1998) 45 NSWLR 538 at 543
R v Previtera (1997) 94 A Crim R 76
Bollen v R (1998) 99 A Crim R 510
R v Troja (CCA (NSW) unreported, 16 July 1991)
GPD (1991) 53 A Crim R 112
The Queen v Pham (1991) 55 A Crim R 123 at 135
R v Gordon (1994) 71 A Crim R 459 at 469
R v Hawkins (1993) 67 A Crim R 64 at 66
The Queen v Mconald (NSWCCA unreported, 12 December 1995)
The Queen v Hill (1981) 3 A Crim R 397 at 402
The Queen v Dodd (1991) 57 A Crim R 349 at 354
The Queen v McGuire (NSWCCA unreported, 30 August 1995
The Queen v Alexander (NSWCCA unreported 24 February 1995

DECISION: Kane Graham, I sentence you to 5 years imprisonment. The sentence is to commence on 20 September 2000. I set a non-parole period of 3 years cmmencing on 20 September 2000 and ending on 19 September 2003. The prisoner will be eligible to be released to parole on that day, 19 September 2003.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

WHEALY J

FRIDAY 10 November 2000

70078/99 - REGINA v Kane GRAHAM

SENTENCE 1 HIS HONOUR: The prisoner, Kane Graham was tried before me for the murder of Brendan McGovern on or about 4 March 1999. On Wednesday, 6 September 2000, the prisoner was found guilty of manslaughter. A sentence hearing was completed on 20 October 2000. The prisoner was on that day remanded in custody until today for the passing of sentence. 2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years. 3 I am required to find the facts relevant to sentencing. It is necessary that the facts I find be consistent with the jury’s verdict. The facts I find relevant to sentencing must be, so far as they relate to findings of fact against the prisoner, be a finding arrived at beyond reasonable doubt (R v Isaacs (1997) 41 NSWLR 374 at 378). The onus of proof going to matters of mitigation is on the prisoner who must establish such matters on the balance of probabilities (R v Olbrich (1998) 45 NSWLR 538 at 543). 4 Brendan McGovern’s body was found on 4 March 1999 early in the morning by some children on their way to school. The body lay in the Gladesville Reserve off Huntley’s Point Road. At the relevant time, the area where the body…

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 Graham

Details

AGLC: Regina v Graham [2000] NSWSC 1033
Case: [2000] NSWSC 1033
Decision Date: 10 November 2000

CaseChat Overview and Summary

Kane Graham was convicted of manslaughter following the death of Brendan McGovern, whom Graham strangled during a sexual encounter. The trial judge, Whealy J, found that Graham's actions were disproportionate to the threat posed by McGovern, and that Graham believed he was acting in self-defence. However, Whealy J determined that Graham's belief was unreasonable, as McGovern did not pose a serious threat. The judge sentenced Graham to five years imprisonment, with a non-parole period of three years. Whealy J considered several factors in determining the sentence, including Graham's lack of criminal history, his age, and the circumstances of the crime. The judge also found that Graham showed remorse for his actions, although this was mixed with self-pity and concern for his family and future. Whealy J rejected the Crown's arguments that Graham's actions were callous and indifferent, and that there were aggravating factors that warranted a harsher sentence. The judge concluded that Graham's actions were a serious crime, but that the circumstances warranted a sentence towards the lower end of the scale. Whealy J ultimately determined that a full-time custodial sentence was necessary to reflect the gravity of the crime and to provide deterrence.

Orders