Regina v Wallace [2006] NSWSC 897

New South Wales Supreme Court

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

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

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 the prisoner to prove on the balance of probabilities facts which would be favourable to the prisoner. 7 There may be matters which would be relevant to sentencing but as to which the state of the evidence does not permit a sentencing judge to make any finding, either a finding beyond reasonable doubt adverse to the prisoner or a finding on the balance of probabilities favourable to the prisoner. That a sentencing judge may not have sufficient evidence to be able to make a finding on a matter which is relevant to sentencing was recognised by the High Court in Olbrich and in Weininger v The Queen (2003) 212 CLR 629.