KR v R

The Sentencing of LR. 11When sentencing LR on 3 February 2010 ( R v LR [2010] NSWSC 22), his Honour said :- [5] There was an agreed statement of facts tendered but it was augmented by evidence given from the offender who adopted an account he gave to a psychiatrist .. of the circumstances of the killing. He was not cross-examined on this aspect of his evidence. [16] ... The offender gave an account that was not challenged in cross-examination. He stated that the co-accused hit the victim of the robbery off his bike and knocked him out. The victim's pocket was searched but little of value was found. They walk toward nearby flats when a taxi stopped and the deceased alighted. The offender claimed he was urinating at the time. According to him the co-accused almost immediately attacked the deceased and started kicking him. The offender ran up and kicked the deceased once to the face. He thought that "things were getting out of hand" and tried to stop the attack by the co-accused but he was unsuccessful. When the violence eventually ceased the offenders searched the deceased's pockets. He gave the co-accused the wallet and keys he found but kept the mobile phone. [17] I am prepared to accept this account although I believe that the offender is minimising his involvement in the assault. In any case on his account he witnessed what was happening to the unfortunate deceased and joined in the violence by kicking the defenceless man in the face. [23] The offender pleaded guilty 11 months after the charges had been laid but while still in the Children's Court. He should receive a discount of 20% for the utilitarian value of his plea. I accept now that he is genuinely remorseful. [26] .... I accept that in the infliction of violence the offender played a lesser role than his co-accused, but he was a willing participant in the causing of serious injury upon the deceased simply for that purpose. He was the initiator of the criminal activity that resulted in the killing and serious robbery offence. The Crown accepts that there was no intention to kill but I believe the intention of both the offender and his co-accused was to inflict grievous bodily harm to a very significant degree. [32] The offence committed by this offender was a serious case of murder because it was so senseless and vicious. Although unplanned, the offender and his co-accused planned to use violence to rob some person. There is some mitigation in the fact that the offender tried to stop his co-accused but only after he had himself joined in a brutal attack on a completely innocent and defenceless person. 12Ultimately, his Honour regarded the appropriate starting point for the offence of murder, before the application of the discount for the plea of guilty, as 19 years, 3 years less than the starting point adopted for the purposes of sentencing the applicant.

Ground 1 : Parity 13The italicised passage in the remarks set out at [9] above is central to the applicant's argument on this ground. The applicant submits that the statement "both offenders were equally responsible for the death of the deceased" is equivalent to a finding by his Honour that both offenders were equally culpable, thus requiring the imposition on each offender of the same or relevantly similar sentence for the murder. The reference to "relevantly similar" recognises that different discounts for the respective pleas of guilty were applied to the notional starting points for the sentence, although the applicant also takes issue with the assessment of the discount. 14The applicant went further and asserted that there was nothing in the remarks on sentence that indicated his Honour considered the applicant more culpable than the co-offender. 15The applicant's argument invites attention to the basis upon which each offender was charged with the murder, namely, joint criminal enterprise, and to the distinction in law between criminal responsibility and culpability. 16As James J observed (McClellan CJ at CL and Adams J agreeing) in R v Wright [2009] NSWCCA 3, when dealing with a joint criminal enterprise to cause grievous bodily harm which involved stomping on and kicking the head of the victim :- 28 If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. 29 However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). (bold not in original) 17This passage was also cited with approval in R v JW [2010] NSWCCA 49 at [162]. With respect to the identification of the role played by each participant in a joint criminal enterprise, Spigelman CJ said (Allsop P, McClellan CJ at CL, Howie and Johnson JJ agreeing) at [161] :- It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise . Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues , No 38, Judicial Commission of New South Wales, June 2009.) (bold not in original) 18More recently, in R v Sukkar [2011] NSWCCA 140, Davies J summarised the position thus at [36] :- To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, ( Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision ( R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced ( R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). (bold not in original) 19What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct. 20Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. 21Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. "The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability." : R v O'Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ. 22Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment : R v Merritt [2004] NSWCCA 19 ; R v Henry & Ors. [1999] NSWCCA 111 at [254] ; 46 NSWLR 346 ; 106 A Crim R 149. 23Turning then to Howie J's remarks on sentence, the reference to the offenders' equal responsibility for the death of the deceased did no more than reflect their joint participation in an agreement to inflict serious physical injury that resulted in the victim's death. The findings of fact made by his Honour that attribute to the applicant the stomping injuries to the head of the deceased are not disputed by the applicant. His Honour then implicitly acknowledges that some other injuries to the face and head of the deceased were probably jointly inflicted with LR. 24These findings were consistent with the agreed statement of facts that included a summary of the post mortem report to the effect that there were more than five visible shoe imprints to the deceased's head, including to the scalp, the right side of the face and left upper neck. These shoe imprints were consistent with the tread pattern of shoes worn by the applicant. There were also other injuries to the face, including the fracture of the jaw and extensive bruising. The findings were also not inconsistent with the unchallenged evidence of LR that he had kicked the deceased once to the face. 25In short, a proper reading of the remarks on sentence make it abundantly clear that this applicant was indeed more culpable than LR. That greater culpability arose from his infliction of more significant violence upon the deceased than LR, a conclusion that followed from the forensic evidence and from the absence of any evidence before the judge capable of differentiating the applicant's role in the commission of the offence from that suggested by the agreed statement of facts. 26In my view, there is no substance to this ground. The applicant's sentence does not engage the parity principle because the judge made legitimate findings of fact that gave rise to different degrees of culpability. In these circumstances, the notion of equal justice was not violated : Postiglione v R [1997] HCA 26 ; 189 CLR 295. 27Following the hearing of the appeal, the applicant requested that the Court not deliver judgment until after the parties had been given the opportunity to file additional submissions addressing the impact, if any, of the High Court's publication of its reasons in Green v The Queen ; Quinn v The Queen [2011] HCA 49. The High Court's reasons were handed down on 6 December 2011 and supplementary submissions were received on 13 and 14 December 2011. 28The majority of the High Court in Green and Quinn discussed the exercise of the residual discretion on a Crown appeal not to intervene, even where the sentence in question might be considered erroneously lenient. It was accepted that the application of the parity principle in severity appeals is different from its application in Crown appeals (at [34]). In the course of the majority judgment (French CJ, Crennan and Kiefel JJ) it was noted at [32] that : A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. 29The qualitative and discretionary judgments made by the primary judge in this case were entirely justified. The applicant has not demonstrated any error in that respect. The legitimate distinction drawn between the applicant and LR justified a difference of 3 years in the notional starting point.

Ground 2 : Denial of Procedural Fairness 30The applicant's complaint on this ground is that the allocation of a 15% discount for his plea of guilty constituted a denial of procedural fairness, in that the judge had previously indicated during the sentencing proceedings that a discount of 20% would be applied. Further, it is said that the applicant had relied on that legitimate expectation and had not been given an opportunity to make submissions in opposition to any lower discount. In order to deal with this ground, it is necessary to place the judge's remarks in their proper context. 31During the sentencing proceedings and following a query of the applicant's then counsel whether the applicant should receive any less or more than the 20% discount given to LR, the applicant's counsel said :- Your Honour, I would not be arguing with the same discount. 32The judge then referred to the delay in the entry of the applicant's plea while potential defences were explored and said :- The simple fact is that you get your discount principally upon when the plea is given and the complexity or otherwise of the case is a different question, but this wasn't a complex case. There might have been a few witnesses called. Anyway, unless the Crown says otherwise , it seems to me a discount of 20% is appropriate. 33After a further brief exchange, his Honour repeated :- As I say, I am not giving him any more than 20%. Unless the Crown wants to suggest otherwise , that is what I'll give him. 34The italicised words in the passages set out above indicate that his Honour's view regarding the level of the discount was conditional upon the Crown's submissions on that subject. Shortly thereafter, the Crown Prosecutor said "I would have submitted it be lower than that but I won't say anything more than that." The following exchange occurred :- HH : Is there much difference between him and the co-offender in that regard ? Crown : I believe there is, your Honour, the co-offender gave evidence. HH : As to a plea of guilty? No? Crown : The plea of guilty of the co-offender was much earlier. It was entered in the Children's Court. HH : When was his [the applicant's] ? On the arraignment date in this court ? Crown : Yes. 35The applicant's counsel made submissions in reply but did not further address the level of the discount. To the extent that the applicant now relies upon Trujillo-Mesa v R [2010] NSWCCA 201, the applicant did in fact have the opportunity to make further submissions in response to the Crown's submissions. The possibility that his Honour would discount the applicant's sentence by less than 20% was made overt during the above exchanges. 36During the remarks on sentence, his Honour said :- The offender did not plead guilty until his arraignment in the Supreme Court. I was told that this was because the issue of intoxication had to be considered. That might be so but the utilitarian value of the pleas was delayed. Although I indicated at the hearing that I thought a discount of 20 per cent would be appropriate, on further reflection that would be unjustified and unfair to the co-offender who pleaded guilty in the Children's Court. I believe the Crown was correct in his submission that the discount should be less than I suggested. I am prepared to discount his sentence by 15%. 37These remarks accurately record the discussions between the bench and counsel. They also expose his Honour's reasons for allowing the discount that he did. A discount of 15% is generally the most that could be expected on arraignment in this Court : R v Borkowski [2009] NSWCCA 102. 38This ground also fails. 39The orders I propose are :- (1)Leave to appeal granted. (2)Appeal dismissed. 40HARRISON J : I agree with Latham J.

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