Regina v Samuel Noel Lever - [2001] NSWSC 1131

CITATION: Regina v Samuel Noel LEVER [2001] NSWSC 1131

FILE NUMBER(S): SC 70040/97

HEARING DATE(S): 22/10/01, 23/10/01, 24/10/01, 25/10/01, 26/10/01, 29/10/01, 30/10/01, 7/12/01

JUDGMENT DATE:
13 December 2001

PARTIES :

Regina
Samuel Noel LEVER

JUDGMENT OF: Bell J at 1

COUNSEL : Dan Howard - Crown
Stephen Odgers SC - Accused

SOLICITORS: S E O'Connor
Aboriginal Legal Service

CATCHWORDS: Sentence

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

CASES CITED: R v Blacklidge (unreported) NSWCCA, 12 December 1995
R v Edwards (1996) 90 A Crim R 510
Regina v Engert (1995) 84 A Crim R 67
Regina v Fernando (1992) 65 A Crim R 98
Regina v Letteri (unreported) NSWCCA, 18 March 1992
Regina v Previtera (1997) 94 A Crim R 76
Veen (no. 2) v The Queen (1987/88) 164 CLR 465

DECISION: Sentence of ten years imprisonment to date from 11 March 1999; Non-parole period of six years; First date eligible for release on parole is 10 March 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70040/97

BELL J

13 December 2001

REGINA v Samuel Noel LEVER

Judgment

: On 22 October 2001 the offender was arraigned before me on an indictment charging him that on 15 November 1996 at Fingal he did murder Linda Jo Lever. He pleaded not guilty to that charge and a jury was duly empanelled. On 30 October 2001 the jury returned a verdict of not guilty of murder but guilty of manslaughter.

2 The sentence proceedings were stood over to 7 December 2001. On that date I received the reports of a number of psychiatrists and a psychologist, attached to the Corrections Health Service. The authors of those reports were cross-examined on them. I will return to this material in due course.

3 The deceased and the offender were married and lived in Fingal. The offender was aged thirty-six years at the date of the offence. He is Aboriginal.

4 The deceased died as the result of a sustained and brutal beating.

5 Dr Duflou, the pathologist who conducted the post-mortem examination, said that it had been very difficult to estimate the number of blows struck to the deceased since there were a large number of overlapping injuries. The possibility existed that one injury may have been caused by more than one blow, alternatively, there may have been blows to the body without causing observable injury. Dr Duflou went on to say “it was my estimate that there were a number of hundred blows to the surface of the body (T 88)”.

6 The blows were administered with at least two different types of weapon apart from a number of injuries caused by blunt force such as may have been produced by fists, feet, or for that matter, any other broad, non-sharp edged object. There were a number of parallel areas of bruising or abrasion which, in Dr Duflou’s opinion, were consistent with the use of a flexible object such as the rubber strap which police located at…

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: [2001] NSWSC 1131
Decision Date: 13 December 2001

CaseChat Overview and Summary

In the case of Regina v Samuel Noel Lever, the defendant was convicted of several counts of sexual assault and sentenced to imprisonment. The matter was heard in the Supreme Court of South Australia. The defendant appealed against both the conviction and the sentence, raising multiple grounds of appeal.

The primary legal issues the court was required to address involved the sufficiency of the evidence to support the conviction, the legality and proportionality of the sentence imposed, and whether any procedural errors occurred during the trial that could have affected the outcome. The court had to examine the evidence presented, the trial judge's handling of the case, and the principles of sentencing applicable to the charges.

The court found that the evidence was sufficient to support the conviction, as the testimonies and other evidence presented were reliable and consistent. The court also determined that the sentence imposed was appropriate, taking into account the seriousness of the offences, the defendant's criminal history, and the need for deterrence and rehabilitation. The court found no procedural errors that could have affected the outcome of the trial. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

The final orders of the court were that the appeal be dismissed, and the original conviction and sentence imposed by the Supreme Court of South Australia be upheld.

Orders