Regina v Wallace - [2006] NSWSC 897

CITATION: Regina v Wallace [2006] NSWSC 897

HEARING DATE(S): 20-23/03/06, 27-29/03/06, 3-6/04/06

JUDGMENT DATE :
8 September 2006

JUDGMENT OF: James J at 1

DECISION: Sentence - Non-parole period of imprisonment of 14 years - balance of term 6 years

CASES CITED: R v Isaacs (1997) 90 A Crim R 587
R v Twala (unreported NSW CCA 4 November 1994)
The Queen v Olbrich (1999) 199 CLR 270
Weininger v The Queen (2003) 212 CLR 629
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PARTIES: Regina v Michael Anthony WALLACE

FILE NUMBER(S): SC 2005/623

COUNSEL: P Conlon SC - Crown
P Bodor QC - Prisoner

SOLICITORS: S Kavanagh
Ford Criminal Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

FRIDAY 8 SEPTEMBER 2006

2005/623 REGINA v Michael Anthony WALLACE
REMARKS ON SENTENCE

1 HIS HONOUR: On 6 April 2006, after a trial presided over by me, the jury found the prisoner Michael Anthony Wallace guilty of having murdered on or about 19 November 2003 a woman called Zoe Zou.

2 When the prisoner was arraigned before the trial commenced, he pleaded not guilty to the charge of murder but added that he pleaded guilty to the offence of the manslaughter of Zoe Zou. The Crown did not accept the plea of guilty to manslaughter in discharge of the indictment and the trial of the prisoner on the charge of murder proceeded.

3 By pleading guilty to the offence of the manslaughter of Zoe Zou the prisoner admitted that he had done an act causing the death of Zoe Zou, that is, that he had killed Zoe Zou. Furthermore, although the prisoner did not make any admission, there was no real dispute at the trial that at the time of killing Zoe Zou the prisoner had had the intent required for the offence of murder.

4 The only real issue at the trial was whether the Crown could disprove that the prisoner had done the act of killing Zoe Zou under provocation. By returning a verdict of guilty of murder the jury showed that the Crown had succeeded in eliminating any reasonable possibility that the prisoner had acted under provocation. It will be necessary later in these remarks to consider the basis on which the jury could have concluded that the Crown had disproved provocation.

5 As the sentencing judge I have to determine, so far as I can, what are the facts relevant to sentencing the prisoner.

6 The principles to be applied by me in determining those facts have been stated in such cases as R v Isaacs (1997) 90 A Crim R 587 and The Queen v Olbrich (1999) 199 CLR 270. Any facts I find must be consistent with the verdict of the jury and I must accept such facts as are necessarily established by the verdict of the jury. Subject to this constraint, the onus is on the Crown to prove beyond reasonable doubt facts which would be adverse to the prisoner and the onus is on…

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 Wallace

Details

AGLC: Regina v Wallace [2006] NSWSC 897
Case: [2006] NSWSC 897
Decision Date: 8 September 2006

CaseChat Overview and Summary

In Regina v Wallace, the Supreme Court of New South Wales handed down a decision regarding the sentencing of Michael Anthony Wallace for the murder of Zoe Zou. The court was required to determine the appropriate sentence, taking into account the nature of the crime, the circumstances surrounding the killing, and the subjective circumstances of the prisoner. The court found that the prisoner's account of the events leading up to the killing was implausible and not credible, and that the only objective facts of the killing were the bare facts: the prisoner had shot Zoe Zou with intent to kill her, and had concealed her body. The court did not find that the killing was premeditated or that the prisoner had a motive for the crime. The court also considered the subjective circumstances of the prisoner, including his age, ill health, and the harsh conditions of his custody. The court ultimately decided on a non-parole period of imprisonment of fourteen years, with a balance of the term of six years, recognising the harsh conditions of the prisoner's custody as a mitigating factor. The sentence was set to commence on the date of the prisoner's arrest, 29 March 2004, and the prisoner would be eligible for release on parole on 28 March 2018.

Orders