R v Michael KUTSCHERA [2008] NSWSC 1271

New South Wales Supreme Court

CITATION : R v Michael KUTSCHERA [2008] NSWSC 1271

HEARING DATE(S) : 31 October 2008

JUDGMENT DATE : 28 November 2008

JUDGMENT OF : Fullerton J

DECISION : I sentence the offender to a non-parole period of 20 years to commence on 21 July 2007 and to expire on 20 July 2027. I impose a balance of term of 6 years and 8 months.

CATCHWORDS : CRIMINAL LAW - sentence - murder - motor vehicle used as weapon - offence within mid range - standard non-parole period

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

CATEGORY : Principal judgment

Apps v R [2006] NSWCCA 290 Knight v R [2006] NSWCCA 292; 164 A Crim R 126 Murnin v R (Court of Criminal Appeal, 16 August 1985, unreported) CASES CITED : R v Hall [2001] NSWCCA 202 R v Holton [2004] NSWCCA 214 R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES : The Crown Michael Kutschera

FILE NUMBER(S) : SC 2007/5907

COUNSEL : P Barnett SC (Crown) P Winch (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Nicolas Moir & Associates (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

FULLERTON J

28 NOVEMBER 2008

2007/5907 R v MICHAEL KUTSCHERA

REMARKS ON SENTENCE 1 HER HONOUR: On 10 September 2008 the Crown presented an indictment charging the offender, Michael Kutschera, with the murder of Lukas Gleeson. The Crown alleged that he murdered the deceased by deliberately driving over him as he lay prone on a footpath in Sydney Street, Muswellbrook in the early morning of 21 July 2007. The offender entered a plea of not guilty. On 24 September 2008 the jury convicted him of murder. 2 The forensic and scientific evidence established that it was the offender's Nissan Patrol that killed the deceased. The defence did not challenge that evidence. The single issue in dispute at the trial was whether the offender was the driver of the Nissan Patrol. 3 The defence case was that a man, bearing an uncanny likeness to the offender, took the Nissan Patrol from where it was parked at the rear of the offender's home in Sydney Street at around 2.50am on 21 July 2007, drove it a short distance towards where the same man had earlier been involved in a fight with one of the deceased's friends and then, after killing the deceased, drove back to the offender's house, washed the front wheels of the car with a view to removing any evidence that may have associated the car with the murder, and left. 4 The offender gave evidence that he was not that person and not the person who was involved in the fight in Sydney Street. He said that when his car was taken and used to kill the deceased he was not at home but out walking. 5 By its verdict the jury must be taken to have rejected the offender's evidence as untrue. The pre-trial proceedings