R v Carberry (No 5) [2023] NSWSC 523

R v Carberry (No 5) [2023] NSWSC 523

Mr Carberry is sentenced for manslaughter by excessive self-defence after joining a plan to rob the victim, producing a specific intent to inflict grievous bodily harm but not to kill, aggravated by the offence being committed in company, use of a weapon, breach of parole, and with diminished moral culpability due to his traumatic history and ADHD. Applying a total sentencing discount of 12.5% and finding special circumstances, the sentence is set at 8 years and 9 months imprisonment, with a non-parole period of 5 years and 9 months, commencing 13 January 2021.

Parties
Prosecution: Rex; Defendant: Saimone (Simon) Carberry
Jurisdiction
Australia
Judgment Date
12 May 2023
Procedural Posture
Criminal / Sentencing Judgment
Outcome
conviction and sentence imposed
Legal Topics
Manslaughter, Sentencing, Excessive Self Defence, Breach of Parole, Aggravating and Mitigating Factors, Parity Principle, Rehabilitation, Special Circumstances
Criminal Law Manslaughter Sentencing Excessive Self Defence Breach of Parole Aggravating and Mitigating Factors Parity Principle Rehabilitation +1 more

Case Brief

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Parties

Rex

Prosecution

Saimone (Simon) Carberry

Defendant

Procedural Posture

Criminal / Sentencing Judgment

Legal Issues

  1. 1 Appropriate sentence for manslaughter following acquittal of murder
  2. 2 Whether intention to inflict grievous bodily harm or to kill existed
  3. 3 Impact of plan to rob victim on sentencing

Ratio Decidendi

Mr Carberry is sentenced for manslaughter by excessive self-defence after joining a plan to rob the victim, producing a specific intent to inflict grievous bodily harm but not to kill, aggravated by the offence being committed in company, use of a weapon, breach of parole, and with diminished moral culpability due to his traumatic history and ADHD. Applying a total sentencing discount of 12.5% and finding special circumstances, the sentence is set at 8 years and 9 months imprisonment, with a non-parole period of 5 years and 9 months, commencing 13 January 2021.

Court Disposition

conviction and sentence imposed

Orders

  • Simon Carberry convicted for unlawful killing; sentenced to a non-parole period of 5 years and 9 months commencing on 13 January 2021 and expiring on 12 October 2026
  • Balance of term is 3 years, expiring on 12 October 2029; eligible for parole upon expiry of non-parole period