R v Joyce [2007] NSWSC 218

New South Wales Supreme Court

CITATION : R v Joyce [2007] NSWSC 218

HEARING DATE(S) : 17/11/06, 23/02/07

JUDGMENT DATE : 23 March 2007

JUDGMENT OF : James J at 1

DECISION : Sentence - Non-parole period of 16 years commencing 12/07/05 and expiring 11/07/21 and a balance of term of 5 years commencing on 12/07/21 and expiring on 11/07/26. The earliest date on which you will be eligible for release on parole will be 11/07/21.

Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996

R v Isaacs (1997) 90 A Crim R 587 CASES CITED : The Queen v Olbrich (1999) 199 CLR 270 Weininger v The Queen (2003) 212 CLR 629.

PARTIES : Regina v Bevan Phillip JOYCE

FILE NUMBER(S) : SC 2005/2542

COUNSEL : L Lungo - Crown P Young SC - Prisoner

SOLICITORS : Solicitor for Public Prosecution -

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

JAMES J

Friday 23 March 2007

2005/2542 REGINA v Bevan Phillip JOYCE

REMARKS ON SENTENCE 1 HIS HONOUR: On 19 July 2006 after a trial presided over by me a jury found the prisoner Bevan Phillip Joyce guilty of having murdered on 10 April 2005 at Colyton, Rosemary Joyce, who was his estranged wife. 2 After the jury had returned their verdict of guilty the proceedings on sentence were stood over to 17 November 2006. On 17 November 2006 counsel for the prisoner applied for a further adjournment of the proceedings on sentence to enable medical reports about the prisoner to be obtained and the proceedings on sentence were adjourned to 23 February 2007. On 23 February 2007 a hearing of the proceedings on sentence took place and I reserved my sentencing decision. 3 As a sentencing judge I have to determine, so far as I can, what are the facts relevant to the sentencing of the prisoner. 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. 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. 4 In the present case there are some difficulties in determining some of the facts relevant to the commission of the offence. Only the prisoner and the victim were present at the time of the murder, so that there is no evidence from any eye witness other than the prisoner. The prisoner himself did not give evidence at the trial. He gave brief evidence in the proceedings on sentence but was not asked any questions about the facts of the offence. On 10 April 2005 and 11 April 2005 the prisoner gave a number of accounts of what he said had happened on the evening of 10 April 2005, including in answers in a long recorded interview by police and in a walk through recorded interview conducted by police but important parts of these accounts are inconsistent with the jury's verdict of guilty of murder and, accordingly, must be rejected.