Regina v Hamshere - [2005] NSWSC 1319

CITATION:
REGINA v. HAMSHERE [2005] NSWSC 1319

HEARING DATE(S): Friday 9 December 2005

JUDGMENT DATE :

15 December 2005

JURISDICTION:
Criminal

JUDGMENT OF:
Hall J at 1

DECISION:
Non-parole period of three years to commence on 26 December 2004 and to expire on 25 December 2007 and a balance of term of two years to expire on 25 December 2009. The earliest date upon which the offender will be eligible for release on parole is 25 December 2007. In relation to the offender's ultimate release to parole, I recommend that consideration by given by the Parole Authority that he be released to a residential or other suitable rehabilitation programme and attend intensive counselling for alcohol related issues as directed by the Probation and Parole Service.

CATCHWORDS:
Criminal law - manslaughter - plea of guilty - offender affected by intoxicating liquor - offender stabbed the deceased - did not act with intent to kill - offender and deceased were friends - deceased and offender wrestled at first in jest - cognitive and motor functions impaired by alcohol - contrition - good prospects of rehabilitation - special circumstances - guilty plea entered at first available opportunity.

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

CASES CITED:
Hill (1981) 3 A. Crim. R. 397
Stephens (CCA, 15 August 1993)
MacDonald (CCA, 12 December 1995)
Thomson & Houlton (2000) 49 NSWLR 383
Dodd (1991) 57 A. Crim. R. 349
Simpson (2001) 126 A. Crim. R. 525
Chami [1999] NSWSC 1268
Blacklidge (CCA, 12 December 1995)

PARTIES:
REGINA v.
HAMSHERE, Terry John

FILE NUMBER(S):
SC 2005/1549

COUNSEL:
Crown: J. Kiely, SC.
Off: L. Flannery

SOLICITORS:
Crown: G. Steedman
Off: N. Marshall

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HALL, J.

THURSDAY 15 DECEMBER 2005

2005/1549

REGINA v. TERRY JOHN HAMSHERE

SENTENCE

1 HALL, J: Terry John Hamshere to whom I will refer in these remarks as “the offender”, was originally charged with the murder of Edward Matthews. On 18 August 2005, he entered a plea of not guilty and was committed for trial.

2 On 7 October 2005, he was arraigned before his Honour Justice Barr and pleaded not guilty to the charge of murder but guilty to manslaughter. The Crown accepted the offender’s plea in full satisfaction of the indictment. In doing so, the Crown accepted that the offender was well affected by intoxicating liquor at the time he stabbed the deceased. The Crown has agreed that its acceptance of the plea may also be taken as based on an unlawful and dangerous act on the part of the offender.

3 The acceptance of the plea to manslaughter involves an acceptance by the Crown that the offender did not act with intent to kill the deceased or to cause him serious bodily harm. The determination of a proper sentence, accordingly, is to proceed upon the basis that the offender had no such intent.

4 He was remanded in custody following his arrest on 26…

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 Hamshere

Details

AGLC: Regina v Hamshere [2005] NSWSC 1319
Case: [2005] NSWSC 1319
Decision Date: 15 December 2005

CaseChat Overview and Summary

The case of Regina v Hamshere arose from an incident where the defendant, Hamshere, stabbed his friend, the deceased, leading to his death. The dispute centred on whether Hamshere's actions constituted manslaughter given his state of intoxication at the time of the incident and his subsequent guilty plea. The case was heard by the Supreme Court of Victoria.

The central legal issue was whether the defendant's intoxication could be considered in mitigating his culpability for manslaughter. The court also had to determine whether Hamshere's guilty plea and his remorse could be factored into the sentencing process. Another issue was whether the special circumstances surrounding the case warranted a departure from the usual sentencing principles.

The court considered the mitigating effect of Hamshere's intoxication, which significantly impaired his cognitive and motor functions. It acknowledged the defendant's guilty plea entered at the first available opportunity, as well as his genuine contrition and good prospects for rehabilitation. The court held that these factors, alongside the unique relationship between the offender and the deceased, warranted a reduced sentence. The court ultimately accepted the plea of manslaughter and imposed a sentence that reflected these special circumstances.

The court ordered that Hamshere be sentenced to imprisonment with a consideration of parole after serving a specific non-parole period, reflecting the mitigating factors and the defendant's early guilty plea.

Orders