Regina v McDonald [2007] NSWSC 813

New South Wales Supreme Court

CITATION : Regina v McDonald [2007] NSWSC 813

HEARING DATE(S) : 24 May 2007 28 June 2007

JUDGMENT DATE : 27 July 2007

JUDGMENT OF : Price J at 1

DECISION : Convicted. Sentenced to a term of imprisonment with a non-parole period of 18 years which is to commence on 30 August 2005 and is to expire on 29 August 2023. Balance of term set of 6 years which is to commence on 30 August 2023 and expire on 29 August 2029. Eligible to be released on parole on 29 August 2023.

CATCHWORDS : Criminal Practice and Procedure - sentencing - murder - guilty plea.

Crimes Act 1900 s 19A, s 19A(2), s 19A(3) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 21(1), s 21A(3)(c), s 61(1)

R v AJP (2004) 150 A Crim R 575 R v Carter [2003] NSWCCA 243 R v Fernando [2002] NSWCCA 28 CASES CITED : R v McNaughton [2006] NSWCCA 242 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v Merritt 146 A Crim R 309 R v Ponfield (1999) 48 NSWLR 327 R v Simon [2005] NSWCCA 123

PARTIES : Regina William Andrew McDonald

FILE NUMBER(S) : SC 2006/2340

COUNSEL : Mr G Tabuteau - Crown Mr C Smith - Public Defender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

27 July 2007

2006/2340 Regina v William Andrew McDonald

REMARKS ON SENTENCE 1 HIS HONOUR: William Andrew McDonald pleads guilty to the murder of Barry Shaw on 27 August 2005. The maximum sentence for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment. 2 The deceased died as a result of the infliction by the prisoner of multiple knife wounds to the neck and chest. At the time of his death, the deceased lived in Lalor Park. He was 45 years old when he was murdered. 3 It became apparent during the submissions on sentence that the extent of the prisoner's premeditation to commit the offence was in dispute. The Crown contends that the prisoner's attack on the deceased involved a significant degree of premeditation whereas the prisoner submits that the Court would find that the intention to do really serious bodily harm or to kill was not formed until after the deceased had taken the knife from the prisoner and had slashed him with it. This occurred, the prisoner contends, after a period of about one hour after he entered the deceased's home during which time he and the deceased had consumed cannabis. 4 The onus is on the Crown to prove beyond reasonable doubt when the intent to kill or to inflict really serious bodily harm was formed and the extent of his premeditation to commit the offence. 5 As a mitigating factor to be taken into account on sentence, the prisoner contends that the deceased used the knife against him which is an act of provocation in the limited sense provided by s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (the Crimes (SP) Act). The Crown contends that the deceased's movements with the knife were defensive in nature and provocation is "materially non-existent". 6 The onus is on the prisoner to prove on the balance of probabilities that he was provoked by the victim. 7 Before considering these issues, I propose to detail those facts which are agreed. They are taken from the statement of AGREED FACTS which was tendered by consent.