Cramp v R

Ground 2 - the sentence is unreasonable or plainly unjust

The applicant's central contention was that a term of imprisonment for 40 years is manifestly excessive bearing in mind that the maximum penalty of imprisonment for life is intended for cases in the worst category and the judge correctly recognised the applicant's offence was not in that category: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 451 - 452.
It was submitted that the sentencing judge's assessment of the objective seriousness of the offence as "very great" was not a characterisation reasonably open having regard to the breadth of the range of conduct covered by the offence. It was further contended that the assessment of objective seriousness appears inconsistent with the factual findings taken as a whole.
It was further submitted that the applicant's previous offending and his commission of the present offence in breach of conditional liberty were no doubt relevant, but the boundaries of a proportionate sentence remained set by the objective circumstances of the offence.
The applicant filed supplementary submissions summarising ten cases for assistance in assessing the sentence imposed in the applicant's case in accordance with the principles stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53] - [54] and Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40] - [41. Those decisions have been considered by the Court but are not sufficiently comparable to the facts of the present case to warrant citation or discussion in these reasons.
The Crown submitted that the characterisation of the objective seriousness of an offence is classically within the role of the sentencing judge and, as such, is a matter in which this Court would be slow to intervene: Mulato v Regina [2006] NSWCCA 282 at [46]. It was the Crown's submission that his Honour's finding was one well open to him having regard to the facts.
The Crown relied upon two decisions in comparable cases in support of his argument that the sentence impose was not manifestly excessive. Those decisions are R v Kelsall [2015] NSWSC 480 and Purtill v R [2016] NSWCCA 80. Both of these cases are considered further below. In addition, the Crown filed a supplementary schedule submitting why the ten cases relied upon by the applicant do not assist in establishing this ground.
Consideration
To succeed on this ground the applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. This is the last kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.
This Court's task is not to decide whether it would have exercised its discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. As the High Court has repeatedly observed, consideration of such a ground is undertaken in the context of there being no single correct sentence and that sentencing is not a mathematical exercise. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle.
Turning to the first of the two complaints under this ground, the question is whether it was open to the sentencing judge to make the following finding at [22]: "[22] …Generally speaking, the intention to kill will make the crime more serious than an intention to cause grievous bodily harm. Although I would not, as is clear, describe the attack as pre-meditated, it was decided upon significantly, albeit only a short time, before it was undertaken, and required the removal of the knife from the bag Mr Cramp was holding. This is not a case in the worst category, but its objective seriousness is very great. Furthermore, the fact that Mr Cramp is a dangerous man who has already committed an attack of a similar though less serious kind must give rise to an emphasis on the need for personal deterrence to protect the community."
In determining whether the above finding was open to his Honour this Court is guided by what Simpson J (as her Honour then was) observed in Mulato v Regina at [46] (Spigelman CJ and Adams J agreeing): "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
The sentencing judge found that the applicant engaged in a violent and unprovoked attack on an unarmed and unsuspecting man (at [23]). The attack was made from behind, severing the deceased's spinal cord with a single blow that went completely through the deceased's neck (at [2]). The applicant left the deceased alone and bleeding on the ground and fled the scene (at [7] - [8]).
There was insufficient evidence to establish that the applicant was affected by illicit drugs such as to warrant any amelioration of the seriousness of the crime (at [16]). The applicant displayed no contrition or dismay at his own actions as he directed his friend to drive him away from the scene (at [16]).
At the time of the murder the applicant was on conditional liberty for an offence of assault occasioning actual bodily harm committed on 9 November 2012. This is an aggravating factor pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
On the other hand, the offence was not aggravated by premeditation, by having been committed in furtherance of or to conceal another crime, by having been undertaken for financial gain or in company, by special cruelty in the manner of inflicting death or by the victim being particularly vulnerable (for example a young child). Nor did the crime involve any of the other aggravating factors that are commonly present in cases of murder for which very high sentences of the order imposed by his Honour on this occasion are usually reserved.
A sentence of 40 years including a non-parole period of 30 years is towards the upper limit of terms of imprisonment that are specified in years by the Supreme Court for murders which do not attract mandatory life under s 61(1) Crimes (Sentencing Procedure) Act. The non-parole period of 30 years ordered by Adams J is obviously significantly greater than the standard prescribed by the Crimes (Sentencing Procedure) Act of 20 years.
Having regard to all of these factors, the Court is not satisfied that any error has been shown in the sentencing judge's finding that the objective seriousness in this matter was "very high". Although there is some lack of precision in this characterisation, his Honour clearly found that the offence was above mid-range of seriousness but not in the worst category of cases.
The question for determination is then whether, having made a finding that the objective seriousness was very high, the sentence was nonetheless manifestly excessive. In Hili v The Queen at [59], the High Court rejected the proposition that manifest error is fundamentally intuitive; rather, manifest error arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is incapable of being identified. The High Court said that, "what reveals manifest excess, or inadequacy, of a sentence is consideration of all of the matters that are relevant to fixing the sentence."
The two comparable sentencing decisions relied upon by the Crown are of assistance. R v Kelsall was a case in which motive remained obscure and where protection of the community was an important consideration in determining the appropriate sentence. That offender was sentenced to 40 years' imprisonment including a non-parole period of 30 years for the stabbing murder of a complete stranger to him, in that person's home. The circumstances raised a significantly more pressing concern for the protection of the community than the present case. The offender in that case had reported to a doctor 16 months before the homicide that he experienced intrusive and persistent thoughts of killing people with a knife. He told a psychiatrist at about the same time that he had thoughts of stabbing a person to death "for the thrill of it" ([5], [33], [34]). Psychiatric opinion included that the offender exhibited "significant callous-unemotional traits" and "a reduced capacity for empathy" ([38], [42]).
In R v Kelsall at [62] - [64], it was found that the offender had followed the deceased to the latter's home with the thought that he might kill the deceased should the opportunity arise, albeit without a firm intention to kill from the outset. The learned judge accepted that once the offender had entered the deceased's home he did so for the sole purpose of killing him if he could. The victim was incapacitated by sleep, intoxication or both. At [68], the learned sentencing judge said that, "despite the psychiatrists being unable to fathom a reason for it, [the homicide] must have been the doing of a very disturbed individual". Thus in R v Kelsall there were specific circumstances justifying a very long prison sentence in the interests of protecting the community, which are not present in the case now before this Court.
Purtill v R [2016] NSWCCA 80 was a case in which motive for a murder (by cutting the victim's throat from behind) was not established. A sentence of 28 years' imprisonment including a non-parole period of 21 years was imposed. That case is more closely comparable with the facts now before this Court than the case of R v Kelsall, although there were considerations mitigating sentence in Purtill v R that are not present here. It was found that the murder in Purtill v R had "occurred spontaneously and reactively to circumstances that remain unexplained". The deceased had attended the offender's home to effect a drug-related transaction and in circumstances that were not clarified by the evidence "a violent disagreement erupted between the two men". The offender was wholly unremorseful but the offence was unplanned and "decidedly out of character".
The learned sentencing judge found that the offender did not "present any assessable or identifiable risk to the community of reoffending upon his release", despite his "lack of insight with respect to the strength of the evidence against him". He had no relevant criminal record, the need for specific deterrence was low and his prospects for rehabilitation were high. In this Court it was noted that, "his Honour found that the gratuitous and unexplained nature of the offence warranted general denunciation."
The applicant's case on sentence is less favourable than that in Purtill v R with respect to his adverse criminal record and Adams J's findings regarding his dangerousness, the risk that he would commit violent crimes again and his poor prospects of rehabilitation. Adams J observed at [23]: "This is Mr Cramp's second extremely violent unprovoked knife [attack] which strongly suggests, at least, that his prospects for rehabilitation are not good. I do not say that it is not possible that he might be rehabilitated. It may be that, like many offenders, aging itself will bring about some change of mind and attitude."
The applicant's antecedent criminal history was a relevant matter for consideration by his Honour. It cannot be given such weight as to lead to the imposition of a sentence disproportionate to the gravity of this offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. Despite this, as the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) observed in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 at 473: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
As the High Court went on to observe in Veen v The Queen [No 2] (at 477), the applicant's prior record is relevant: "… to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
At trial the applicant gave evidence denying that he struck the blow that killed the deceased. He did not give evidence at sentence and there was no psychiatric or psychological material tendered on his behalf. His Honour was thus unable to make any finding as to remorse.
Having regard to all of the above matters, and notwithstanding the absence of demonstrated error in ground 1 the Court is persuaded that the sentence imposed was manifestly excessive. Although the circumstances of this unprovoked knife attack were of great objective seriousness, we agree with his Honour's evaluation that it was not a murder "in the worst category". Nor did the circumstances involve such a degree of aggravation or such adverse subjective circumstances as would reasonably justify the severity of the sentence that his Honour imposed.
Taking into account all of the objective and subjective features of the case identified in these reasons, a significantly lower sentence should have been imposed. Namely, a sentence of 34 years' imprisonment including a non-parole period of 25 years and 6 months.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (24)

Cited By (3)