R v EM [2005] NSWSC 212

R v EM [2005] NSWSC 212

The Crown did not prove beyond reasonable doubt that the prisoner was the person armed with the pistol who fired the fatal shot, nor that the shooter fired with the intent required for intentional murder. The prisoner was therefore sentenced for murder on the basis of constructive murder. A life sentence was not imposed because there was a single murder, the prisoner was not proved to be the shooter, the fatal shot was unpremeditated, the prisoner was nineteen and to some degree immature, and he had no relevant criminal history. However, the planned armed home invasion involving firearms, disguise, serious risk of discharge, and the subsequent very serious Kress armed robberies warranted...

Jurisdiction
Australia
Judgment Date
23 March 2005
Procedural Posture
Criminal Sentencing Remarks / Sentence After Jury Verdicts of Guilty on the Logozzo Offences and Pleas of Guilty on the Kress Offences
Outcome
Sentenced to terms of imprisonment totalling 36 years with a non-parole period of 27 years; earliest eligibility for release on parole on 19 May 2029.
Legal Topics
['murder' 'constructive Murder' 'assault With Intent to Rob Whilst Armed With a Dangerous Weapon' 'firing a Firearm With Disregard for Safety' 'robbery Whilst Armed With a Dangerous Weapon' 'fact Finding on Sentence' 'totality' 'non Parole Period']
['criminal Law' 'sentencing'] ['murder' 'constructive Murder' 'assault With Intent to Rob Whilst Armed With a Dangerous Weapon' 'firing a Firearm With Disregard for Safety' 'robbery Whilst Armed With a Dangerous Weapon' 'fact Finding on Sentence' 'totality' 'non Parole Period']

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Procedural Posture

Criminal Sentencing Remarks / Sentence After Jury Verdicts of Guilty on the Logozzo Offences and Pleas of Guilty on the Kress Offences

Legal Issues

  1. 1 ['Whether the prisoner should be sentenced on the basis that he was the intruder armed with the pistol who fired the shots at the Logozzo home.' 'Whether the fatal shot was fired with intent to kill or inflict really serious bodily injury.' 'What sentences should be imposed for the murder, assault with intent to rob, firing a firearm with disregard for safety, and five armed robberies.' 'Whether a life sentence should be imposed for the murder.' 'Whether the sentences should be concurrent or cumulative and whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act.']

Ratio Decidendi

The Crown did not prove beyond reasonable doubt that the prisoner was the person armed with the pistol who fired the fatal shot, nor that the shooter fired with the intent required for intentional murder. The prisoner was therefore sentenced for murder on the basis of constructive murder. A life sentence was not imposed because there was a single murder, the prisoner was not proved to be the shooter, the fatal shot was unpremeditated, the prisoner was nineteen and to some degree immature, and he had no relevant criminal history. However, the planned armed home invasion involving firearms, disguise, serious risk of discharge, and the subsequent very serious Kress armed robberies warranted...

Court Disposition

Sentenced to terms of imprisonment totalling 36 years with a non-parole period of 27 years; earliest eligibility for release on parole on 19 May 2029.

Orders

  • ['For firing a firearm with disregard for the safety of Marianne Logozzo, fixed term of imprisonment of two years commencing on 20 May 2002 and expiring on 19 May 2004.' 'For each of the offences of robbery whilst armed with a dangerous weapon committed on 17 January 2002, fixed term of imprisonment of twelve years...