Regina v MTN; Regina v CVH - [2002] NSWSC 1160

CITATION: Regina v MTN; Regina v CVH [2002] NSWSC 1160 revised - 29/10/2009

FILE NUMBER(S): SC 70034/00;70012/01

HEARING DATE(S): 29, 30, 31 January; 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25 February 2002; 26 April 2002; 14 June 2002

JUDGMENT DATE: 26 August 2002

PARTIES :

Regina
MTN
CVH

JUDGMENT OF: O'Keefe J

COUNSEL : Mr G T Tabuteau - Crown
Mr P Bodor QC - Prisoner MTN
Mr F Santisi - Prisoner CVH

SOLICITORS: DPP, Sydney - Crown
Michael Croke & Co, Woollahra - Prisoner MTN
Nicopoulos & Assoc, Burwod - Prisoner CVH

CATCHWORDS: Murder - Manslaughter - Malicious wounding - Affray - Youthful offenders - Immigrants - Youthful victims - Rival gangs - Incorrect identification of victims - Vengeance - Brutal group attack - Knife used - Stabbing - Wounds to heart and lung - Deliberate act - No actual intention to kill - Intention to inflict grievous bodily harm - Drug habits of prisoners - Sentence statistics - Remorse - Contrition - Totality

LEGISLATION CITED: Crimes Act 1900; ss 19A, 24, 35, 61
Crimes (Sentencing Procedure) Act 1999; ss 21A(2), 22, 23, 24
Evidence Act 1995: s 165(1)
Evidence (Audio and Audiovisual Links) Act 1998
Children (Criminal Proceedings) Act 1987; ss 6, 33

CASES CITED: Regina v Storey (1997) 89 A Crim R 519
Regina v Isaacs (1997) 98 A Crim R 587
Savvas v The Queen (1995) 183 CLR 1
Regina v Hill (1980-1981) 3 A Crim R397
Regina v Dodd (1991-1992) 57 A Crim R 349
Regina v Blacklidge (NSWCCA 12 December 1995 unreported)
Regina v Previtera (1997) 94 A Crim R 76
Bollen v Regina (1997 - 1998) 99 A Crim R 510
Regina v Webster, (NSWCCA 15 July 1991, unreported)

DECISION: CVH; 1. For the manslaughter of Tremain Watene on 10 November 1997, sentenced to imprisonment for 10 years, to commence on 25 January 2002, and to expire on 24 January 2012. Special circumstances found, and non parole period in respect of this offence fixed to commence on 25 January 2002 and to expire on 24 January 2008, on which date you will become eligible for parole. 2. For the assault on GF on 10 November 1997, sentenced to a fixed term of imprisonment of two years, to commence on 25 January 2002 and to expire on 24 January 2004. This sentence will thus be served concurrently with your sentence for manslaughter. 3. For the offence of affray on 10 November 1997, sentenced to a fixed term of imprisonment of one year to commence on 25 January 2002, and to expire on 24 January 2003. This sentence will thus be served concurrently with your sentence for manslaughter. MTN 1. Sentenced to imprisonment for three years in respect of the conviction on the charge of having maliciously wounded GF on 10 November 1997. Such sentence is to commence on 26 February 2001 and to conclude on 25 February 2004. Non parole period in respect of this…

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.

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Details

Case: [2002] NSWSC 1160
Decision Date: 26 August 2002

CaseChat Overview and Summary

In the case of Regina v MTN and Regina v CVH, the defendants were convicted of various charges stemming from a brutal and fatal attack involving members of rival youth gangs. The victims, also members of rival gangs, were attacked in a public place, resulting in the death of one and serious injuries to another. The court was required to determine the appropriate charges against the defendants, considering the circumstances of the attack and the intent behind the actions taken.

The primary legal issue was whether the defendants should be convicted of murder, manslaughter, malicious wounding, or affray. The court had to consider the nature of the attack, the weapons used, and the intent of the defendants. Additionally, the court examined the mitigating factors, such as the defendants' age, background, and the influence of gang culture. The court also had to weigh the aggravating factors, such as the premeditation of the attack and the use of a knife, against any mitigating factors.

The court found that while the defendants had intended to cause grievous bodily harm, there was no actual intention to kill. The defendants were convicted of manslaughter and malicious wounding. The court acknowledged the brutal nature of the attack and the impact on the victims, but also considered the defendants' age and the influence of gang culture. The court found that the defendants had shown some remorse and contrition, which was taken into account in the sentencing. The court emphasised the importance of addressing the underlying issues of gang culture and the need for rehabilitation and reintegration into society.

The final orders included sentences for the defendants, taking into account the totality of the circumstances. The court recognised the need for deterrence and rehabilitation, and ordered that the defendants be subject to rehabilitation programs and supervision upon release. The court also highlighted the importance of addressing the root causes of gang culture and the need for community support and intervention to prevent further violence.

Orders