Regina v McDonald - [2007] NSWSC 813

CITATION: Regina v McDonald [2007] NSWSC 813

HEARING DATE(S): 24 May 2007
28 June 2007

JUDGMENT DATE :
27 July 2007

JUDGMENT OF: Price J at 1

DECISION: Convicted. Sentenced to a term of imprisonment with a non-parole period of 18 years which is to commence on 30 August 2005 and is to expire on 29 August 2023. Balance of term set of 6 years which is to commence on 30 August 2023 and expire on 29 August 2029. Eligible to be released on parole on 29 August 2023.

CATCHWORDS: Criminal Practice and Procedure - sentencing - murder - guilty plea.

LEGISLATION CITED: Crimes Act 1900 s 19A, s 19A(2), s 19A(3)
Crimes (Sentencing Procedure) Act 1999 s 21(1),
s 21A(3)(c), s 61(1)

CASES CITED: R v AJP (2004) 150 A Crim R 575
R v Carter [2003] NSWCCA 243
R v Fernando [2002] NSWCCA 28
R v McNaughton [2006] NSWCCA 242
R v M.A.K, R v M.S.K [2006] NSWCCA 381
R v Merritt 146 A Crim R 309
R v Ponfield (1999) 48 NSWLR 327
R v Simon [2005] NSWCCA 123

PARTIES: Regina
William Andrew McDonald

FILE NUMBER(S): SC 2006/2340

COUNSEL: Mr G Tabuteau - Crown
Mr C Smith - Public Defender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

27 July 2007

2006/2340 Regina v William Andrew McDonald

REMARKS ON SENTENCE

1 HIS HONOUR: William Andrew McDonald pleads guilty to the murder of Barry Shaw on 27 August 2005. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment.

2 The deceased died as a result of the infliction by the prisoner of multiple knife wounds to the neck and chest. At the time of his death, the deceased lived in Lalor Park. He was 45 years old when he was murdered.

3 It became apparent during the submissions on sentence that the extent of the prisoner’s premeditation to commit the offence was in dispute. The Crown contends that the prisoner’s attack on the deceased involved a significant degree of premeditation whereas the prisoner submits that the Court would find that the intention to do really serious bodily harm or to kill was not formed until after the deceased had taken the knife from the prisoner and had slashed him with it. This occurred, the prisoner contends, after a period of about one hour after he entered the deceased’s home during which time he and the deceased had consumed cannabis.

4 The onus is on the Crown to prove beyond reasonable doubt when the intent to kill or to inflict really serious bodily harm was formed and the extent of his premeditation to commit the offence.

5 As a mitigating factor to be taken into account on sentence, the prisoner contends that the deceased used the knife against him which is an act of provocation in the limited sense provided by s 21A(3)(c) of the Crimes (Sentencing Procedure) Act

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 McDonald

Details

AGLC: Regina v McDonald [2007] NSWSC 813
Case: [2007] NSWSC 813
Decision Date: 27 July 2007

CaseChat Overview and Summary

In Regina v McDonald, the appellant was convicted of murder and sentenced in the Supreme Court of Victoria. The case centred on the sentencing of the appellant, who had pleaded guilty to the murder of the deceased. The prosecution alleged that the appellant had acted in a premeditated and deliberate manner, leading to the death of the victim. The court was tasked with determining an appropriate sentence for the offence, considering the mitigating and aggravating factors presented.

The primary legal issues that the court had to address were the nature and circumstances of the offence, the appellant's background and culpability, and the principles of sentencing for murder in Victoria. Specifically, the court needed to assess the gravity of the crime, the appellant's criminal history, and any mitigating factors such as remorse or mental health issues. Furthermore, the court had to balance the principles of deterrence, retribution, and rehabilitation in determining an appropriate sentence.

The court, in delivering its judgment, thoroughly examined the facts of the case and the submissions made by both the prosecution and the defence. It considered the appellant's guilty plea, which could potentially reduce the sentence, and the aggravating factors such as the premeditated nature of the crime. The court also took into account the appellant's background, including any history of mental health issues, and the mitigating factors presented. Ultimately, the court determined that the appropriate sentence should reflect the seriousness of the crime while also considering the mitigating factors. The court imposed a sentence of imprisonment with a non-parole period, recognising the need for both punishment and rehabilitation.

The court's final orders included the imposition of a term of imprisonment for the appellant, with a specified non-parole period. The sentence was designed to address the principles of sentencing for murder, providing both punishment and an opportunity for rehabilitation. The court's decision balanced the need for deterrence and retribution with the possibility of the appellant's future reintegration into society.

Orders