Regina v Lynch - [2002] NSWSC 1140

CITATION: Regina v Lynch [2002] NSWSC 1140

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 70030/02

HEARING DATE(S): 22/07/02, 23/07/022, 24/07/02, 25/07/02, 18/11/02,

JUDGMENT DATE: 20 November 2002

PARTIES :

Regina v Kevin James Lynch

JUDGMENT OF: Whealy J at 1

COUNSEL : W.Creasey - Crown
D. Stewart - Offender

SOLICITORS: Office of the Solicitor for Public Prosecutions - Crown
Ross Hill & Associates - Chinatown, Sydney

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

CASES CITED: Alexander (1994) 78 A Crim R 141 at 144
Tumanako 64 A Crim R 149 at 155
Pearce v Regina 194 (1998) CLR610 at 662-664
Larsen (1989) 44 A Crim R 121 at 127
Hill (1981) 3 A Crim R 397 at 402 per Street CJ
MacDonald NSWCCA 12 December 1985
R v Previtera (1997) 94 A Crim R 76
Bollen v R (1998) 99 A Crim R 510
Simpson (2001) NSWCCA 534

DECISION: Kevin James Lynch, in relation to the charge of malicious woundign with intent I sentence you to a head term of imprisonment of 4 years and 3 months. The sentecne is to commence on 12 August 2001. I set a non-parole period of 3 years and 2 months to expire on 11 October 2004. The date you would be eligible for parole but for the sentence I am about to impose in relation to the manslaughter conviction is 11 October 2004.; In relation to the conviction for manslaughter I sentence you to a head term of 7 years and 8 months imprisonment. The sentence is to date from 12 August 2002. I set a non-parole period of 5 years and 9 months commencing on 12 August 2002 and expiring on 11 May 2008. The prisoner will be eligible to be released to parole on 11 May 2008.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL LAW DIVISION

WHEALY J

20 November 2002

70030/02 - REGINA v Kevin James LYNCH
SENTENCE

1 HIS HONOUR: On the morning of the 12 August 2001, Dr Lyons, the Director of Forensic Medicine for the Hunter region was called by police to a property at 48 Frame Drive, Abermain. There he found the deceased, Jason Phelps. He was positioned on a bed in a small enclosed veranda in the front of the house. Dr Lyons made a preliminary examination and later carried out a post-mortem on the body on the 14 August 2001.

2 At post-mortem, Dr Lyons found that the deceased had died as a consequence of a stab wound in the left chest area directly above and to the outside of the left nipple. The wound was about 19mm in length and somewhere between 100-140 mm in depth. He thought the wound was consistent with a knife wound. He in fact inspected two knife blades that were found inside the premises. It was his opinion that the knife had passed through the skin, the fat and muscles of the chest wall and passed into the chest cavity between the two ribs.…

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 Lynch

Details

AGLC: Regina v Lynch [2002] NSWSC 1140
Case: [2002] NSWSC 1140
Decision Date: 20 November 2002

CaseChat Overview and Summary

In Regina v Lynch, the defendant, Kevin James Lynch, was convicted of manslaughter and malicious wounding with intent to cause grievous bodily harm. The incident arose out of a domestic dispute between Lynch and his wife, Elizabeth Lynch, and involved the deceased, Jason Phelps. Lynch armed himself with two knives and confronted his wife and Phelps, resulting in the fatal stabbing of Phelps and serious injury to Elizabeth Lynch. Lynch pleaded guilty to manslaughter and wounding with intent to cause grievous bodily harm. The court accepted Lynch's plea to manslaughter but rejected the plea to wounding with intent, finding Lynch guilty of the charge at trial.

The court found that the killing of Phelps was an act done under provocation and that Lynch had lost his self-control due to the provocative conduct of Elizabeth Lynch and Phelps. The court considered the degree of provocation, the time between provocation and loss of self-control, and the degree of violence or aggression displayed by Lynch in determining the partial defence of provocation. The court concluded that the degree of provocation was high, and Lynch's loss of self-control was severe, which tended to reduce the objective gravity of the offence.

The court considered various factors in determining the appropriate sentence, including the seriousness of the crime, the level of culpability, and the subjective circumstances of Lynch. The court found that Lynch had shown genuine remorse for his actions and had taken responsibility for his actions. However, the court rejected the argument that there were special circumstances to warrant a variation of the statutory proportion between the total sentence and the non-parole period.

The court imposed a sentence of 4 years and 3 months imprisonment for the charge of malicious wounding with intent, with a non-parole period of 3 years and 2 months. For the manslaughter conviction, the court imposed a sentence of 7 years and 8 months imprisonment, with a non-parole period of 5 years and 9 months. The sentences were partially cumulative, with the manslaughter sentence commencing one year after the date Lynch first went into custody. The court also applied a 15% discount for Lynch's plea of guilty to each offence.

Orders