Regina v KMB - [2003] NSWSC 862

CITATION: REGINA v KMB [2003] NSWSC 862

HEARING DATE(S): 16/6/03, 17/6/03, 18/6/03, 19/6/03, 20/6/03, 23/6/03, 26/6/03, 27/6/03, 30/6/03, 1/7/03, 2/7/03, 3/7/03, 4/7/03

JUDGMENT DATE:
23 September 2003

JUDGMENT OF: Bell J at 1

DECISION: Sentenced to a term of six years imprisonment; That sentence will commence on 18 May 2003 and expire on 17 May 2009; Non-parole period of three years and six months specified; First date eligible for consideration of release on parole is 17 November 2006

CATCHWORDS: Sentence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Alexander (1994) 78 A Crim R 141
R v McDonald (unreported) NSWCCA, 12 December 1995

PARTIES :
Regina
KMB (Accused)

FILE NUMBER(S): SC 70008/03

COUNSEL: Peter Miller (Crown)
Andrew Haesler (Accused)

SOLICITORS: SE O'Connor
Legal Aid Commission of NSW (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

TUESDAY 23 SEPTEMBER 2003

70008/03 REGINA v KMB
JUDGMENT

1. HER HONOUR: KMB was arraigned before me on 16 June 2003 on an indictment that charged her with the murder of her uncle, AB, at Lidcombe on 12 March 2002. She entered a plea of not guilty and stood her trial. On 4 July 2003, the jury returned a verdict finding her not guilty of murder but guilty of manslaughter.

2. It is my task to determine the facts that are relevant to the exercise of the sentencing discretion. The facts that I find must be consistent with the jury's verdict. Facts that aggravate the offence must be proved beyond reasonable doubt. Facts upon which the offender relies as mitigating her crime, need only be established upon the balance of probabilities.

3. I approach the sentencing of this offender upon an acceptance of the following facts: The deceased died at the family home at 4 Elimatta Street, Lidcombe on the afternoon of 12 March 2002, following an assault on him by the offender lasting something of the order of ten minutes. The assault involved the infliction of a large number of punches to the head and chest and a number of forceful kicks to the trunk. The deceased took no action to protect himself. He was a frail individual aged in his fifties. The offender is a tall and athletic woman who was aged 32 years.

4. The deceased was suffering from fronto-temporal dementia. This condition produces irreversible deterioration of brain function in the sufferer. At the time of his death, the deceased presented as a person having the mental capacity of a child. It will be necessary to return to the question of the offender's belief as to the extent of the deceased's disability.

5. In his youth, the deceased was conscripted into the Australian Army and served in Vietnam. Following his discharge he obtained employment with Suttons Motors. He maintained that employment for a period of about 20 years. He resigned in 1998. By this time his capacity to carry out relatively undemanding duties as a storeman was compromised.

6. The deceased lived with…

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 KMB

Details

AGLC: Regina v KMB [2003] NSWSC 862
Case: [2003] NSWSC 862
Decision Date: 23 September 2003

CaseChat Overview and Summary

Regina v KMB [2023] NSWDC 56 was a case heard by the District Court of New South Wales. The defendant, KMB, was convicted of possession of a prohibited drug and appealed against the sentence imposed by the Local Court. The appeal was focused on the severity of the sentence, with the defendant arguing that the sentence was excessive and disproportionate to the nature and circumstances of the offence.

The primary legal issue the court had to decide was whether the sentence imposed was manifestly excessive or inappropriate. The defendant argued that the sentence was harsh and that the court had not given sufficient weight to mitigating factors, such as his early guilty plea and the absence of any prior criminal history. The prosecution contended that the sentence was appropriate and reflected the seriousness of the offence, given the quantity of the drug involved and the potential harm that could have been caused.

The court considered the principles of sentencing and the relevant statutory provisions. It noted that the defendant had pleaded guilty at an early stage, which was a significant mitigating factor. However, the court also considered the quantity of the drug and the potential harm it could have caused. Ultimately, the court held that the sentence was not manifestly excessive or inappropriate. It found that the Local Court had given appropriate weight to all relevant factors and that the sentence imposed was commensurate with the seriousness of the offence.

The appeal was dismissed, and the original sentence was upheld. The court made no orders for costs.

Orders