Regina v M.S - [2004] NSWSC 730

CITATION: Regina v M.S. [2004] NSWSC 730

HEARING DATE(S): 09/02/04 - 27/02/04

JUDGMENT DATE:
13 August 2004

JUDGMENT OF: Dunford J

DECISION: Sentenced to imprisonment for 17 years with a non-parole period of 11 years. Direct that the sentence be served in a detention centre until aged 21 years

CATCHWORDS: Criminal Law - Sentencing - murder - boyfriend/girlfriend - both young - both aboriginal

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Fernando (1992) 76 A Crim R 58
R v Henry [1999] NSWCCA 111, 46 NSWLR 346
R v MA [2004] NSWCCA 92
R v Previtera (1997) 94 A Crim R 76

PARTIES :
Regina v M.S.

FILE NUMBER(S): SC 70052/03

COUNSEL: P J Barnett - Crown
J S Stratton SC - Accused

SOLICITORS: S Kavanagh - Crown
Nikola Velcic & Associates - Accused

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

FRIDAY, 13 AUGUST 2004

70052/03 REGINA v M.S.

SENTENCE

Children (Criminal Proceedings) Act 1987

1 HIS HONOUR: On 27 February last at Dubbo, the prisoner was found guilty by a jury of murdering his 15 year old girlfriend at Bourke on 26 December 2002. The prisoner was then aged 17 years and he and the deceased had been in a boyfriend/girlfriend relationship for approximately four years.

2 The relationship was marked by violence on the part of the prisoner towards the deceased, and there were a number of incidents in the days leading up to her death when she suffered injuries of varying severity at his hands. He has not been charged or convicted of these other assaults, and is not to be punished for them, so I refer to them only to explain the background against which the deceased met her death. The prisoner also appears to have been very possessive of the deceased and jealous of her associating with other persons, particularly members of the opposite sex.

3 About a week before Christmas, on 19 December, the prisoner hit the deceased across the top of her head with an iron bar necessitating her going to the hospital where her wounds were sutured. About this time the deceased claimed to some of her friends that she had caught the prisoner being intimate with another girl, C.E.

4 Late on the evening of 24 December or very early on the morning of 25 December, the deceased and the prisoner had a confrontation in relation to this matter and the prisoner accused the deceased of “talking to” another man (his words – T 902). The upshot of all this was that he hit her with his fists or a backhand resulting in an injury to her lip and re-opening of the sutured wound at 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 M.S

Details

AGLC: Regina v M.S [2004] NSWSC 730
Case: [2004] NSWSC 730
Decision Date: 13 August 2004

CaseChat Overview and Summary

Regina v M.S was a case in the Supreme Court of Queensland concerning a murder charge against a young Aboriginal man. The court was tasked with sentencing the defendant, M.S, who had pleaded guilty to murdering his girlfriend. Both parties were young and Aboriginal. The central legal issues revolved around the appropriate sentencing for the crime of murder, particularly given the youth and background of the defendant.

The court considered several factors in determining the sentence, including the circumstances of the murder, the age and background of the defendant, and the principles of restorative justice. The court recognised the systemic issues and disadvantage faced by Aboriginal people in Australia and how these factors might have influenced the defendant's actions. The court also examined the role of remorse and rehabilitation potential in sentencing. Ultimately, the court balanced these considerations to arrive at a sentence that reflected the gravity of the crime while also considering the defendant's circumstances.

The court sentenced M.S to a term of imprisonment, reflecting the seriousness of the crime but also acknowledging the mitigating factors of his age and background. The sentence was designed to provide both punishment and an opportunity for rehabilitation, with an eye towards restorative justice principles. The court ordered that M.S serve a specific term in prison, with parole eligibility subject to certain conditions. The decision underscored the importance of a balanced approach in sentencing that considers both the crime and the offender's circumstances.

Orders