REGINA v YORK [2007] NSWSC 1470

New South Wales Supreme Court

CITATION : REGINA v YORK [2007] NSWSC 1470

HEARING DATE(S) : 2, 3, 4, 5, 6, 9, 10, 11, 12, 16, July 2007, 13 September 2007

JUDGMENT DATE : 14 December 2007

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : Applying the utilitarian discount in the order of twenty per cent, the overall sentence imposed is one of five years commencing 27 January 2006 comprising a non-parole period of three years and a balance of term of two years. The offender is to be released on parole on 26 January 2009.

CATCHWORDS : Sentence - manslaughter

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44

R v Cardoso (2003) 137 A Crim R 535 CASES CITED : R v Oinonen (1999) NSWCCA 310 R v Thomson; R v Houlton [2000] 49 NSWLR 383; [2000] NSWCCA 309

PARTIES : Regina Alexander Christian YORK

FILE NUMBER(S) : SC 2006/2459

COUNSEL : Mr P J Barnett SC (Crown) Mr J Weir (Offender)

SOLICITORS : Mr I Knight (Crown) Trump Spader Lawyers (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J

14 DECEMBER 2007

2006/2459 REGINA v Alexander Christian YORK

SENTENCE

HIS HONOUR:

Introduction 1 On 16 July 2007, the offender, Alexander York, was convicted following trial of the manslaughter of Rudi Boa at Tumut on 27 January 2006. That Mr Boa's death was caused by a wound inflicted by the offender with a knife was uncontested, indeed, incontestable. Precisely how this came about, however, is not easy to determine. Aside from the offender and, of course, the deceased, no one saw how the fatal wound came to be inflicted. The events immediately before the stabbing were the subject of conflicting evidence from the offender and Mr Boa's girlfriend, Ms Brown. I should state at the outset that, in general, I accept Ms Brown's account as the more truthful, though it may be that in some details her memory is not entirely reliable. Ms Brown, however, did not see the wounding itself, having turned away but a moment before. The offender's account, which was essentially that the wounding was accidental and inflicted when he had put his hand over his head to protect himself from Mr Boa was, I think, rejected by the jury else they would not have convicted him. At the same time, for the reasons I explain, the circumstances were such that recollections were very likely to be confused and I would not infer that the offender's account was a fabrication. The verdict is not inconsistent with the reasonable possibility that the offender had acted in self defence but, defending himself with the hand that held the knife, used excessive force in all the circumstances. In the result, however, there is no account from the offender that is entirely reliable and I must do the best I can on my view of the evidence. Events up to the point of the wounding are I think fairly clear although, as I have said, some of them are the subject of conflicting evidence. 2 It is important to note that I cannot make any finding that is adverse to the offender unless I am satisfied of it beyond reasonable doubt. In other words, the offender must in law be given the benefit of the doubt in respect of any matter that might tend to increase the seriousness of the offence or his culpability for it. Bearing this principle in mind, it is nevertheless necessary that I make some findings about what happened for the purpose of sentencing the offender.