MARCHANT v. REGINA; CRAWT v. REGINA [2006] NSWCCA 120

MARCHANT v. REGINA; CRAWT v. REGINA [2006] NSWCCA 120 - NSWCCA 2005 case summary — Zoe

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LEITH MARCHANT v. REGINA JOHN WILLIAM CRAWT v. REGINA Judgment 1 HULME J: On 23 October 2003 Greg James J sentenced each of the abovenamed to imprisonment on a charge of having murdered Nathan Treganna on 5 August 2002 in the Lane Cove River Park. Marchant had pleaded guilty to that charge on 22 September 2003 and Crawt on 30 September 2003. Over the preceding fortnight Greg James J had been involved in some pre-trial arguments and on 22 September had indicated that he would not exclude certain evidence upon which the Crown indicated it wished to rely. 2 The sentence imposed on Marchant was imprisonment for a period of 38 years including a non-parole period of 32 years both such periods to commence on 19 September 2002. In the case of Crawt the sentence imposed was imprisonment for 35 years including a non-parole period of 28 years both such periods to commence on 10 August 2002. In arriving at this latter sentence, his Honour took into account three further offences set out on a Form 1, viz:- (i) On 7 August 2002 taking and driving a motor vehicle without the consent of the person in possession, that person being in the vehicle at the time. (The offence was identified as arising pursuant to s154C(1)(b) of the Crimes Act.) (ii) On 7 August 2002 robbery of a quantity of Nike merchandise while being armed with a dangerous weapon, namely a self-loading point 32 calibre pistol. (The offence was identified as arising pursuant to s97(2) of the Crimes Act.) (iii) On 10 August 2002 assault with intent to rob whilst armed with a semi automatic pistol. (The offence was identified as arising pursuant to s97(1) of the Crimes Act.) 3 In the sentencing proceedings there was tendered without objection a Statement of Facts. In the document it was asserted that each of these 3 offences were committed by both Applicants. Within the other documentary evidence tendered on sentence, also without objection, there was much tending to prove their involvement in the offences and though counsel for Marchant, at the time the admissibility and use of this material was being considered, indicated that there might be contest as to the conclusions or inferences to be drawn, he indicated that there was no dispute as to matters of fact. 4 In his Remarks on Sentence, Greg James J referred to the fact that in the Statement of Facts, a number of matters which, within the terms of the relevant sections, were stated to be circumstances of aggravation were alleged but that he proposed to have regard to only those circumstances which were contained in the charges as formulated. In this regard it may perhaps be noted that in fact the evidence indicated that the murder and the second and third offences on Crawt's Form 1 involved the same weapon. 5 In arriving at the sentences he imposed Greg James J observed that each Applicant's plea should be recognised by giving each a discount of the order of about 10% from the sentence otherwise appropriate. 6 On behalf of Marchant the grounds of appeal advanced are:- 1. The sentence is manifestly excessive. 2. The learned sentencing Judge applied a wrong principle in taking into account offences with which the Applicant had been charged but to which he had pleaded not guilty in determining his prospects of rehabilitation. 7 On behalf of Crawt four grounds of appeal were advanced:- 1. His Honour failed to take into account the contrition showed by Crawt. 2. The sentence imposed failed to reflect the differences in culpability between the offences. 3. Crawt feels a justifiable sentence of grievance as a result of receiving a "significant additional component" on his sentence in relation to the Form 1 offences. 4. The sentence was manifestly excessive. 8 The circumstances of the principal offence as summarised by Greg James J included the following. Treganna was interested in buying or selling stolen jewellery. Marchant "probably with at least the complaisance if not the active agreement of the offender Crawt" procured Treganna to go to the Lane Cove National Park for the ostensible purpose of dealing in jewellery. The Applicants had earlier been heard talking about robbing Treganna. Between about 7.47 and 8.14pm on the evening of 5 August Treganna was shot twice to the head, one of these shots appearing to have been administered at close range directly into the head. The victim also suffered a gun shot abrasion to his right neck and a bullet passed through his right hand. Three fired cartridge cases were found near his body. His wallet, bum bag and backpack were stolen. 9 The Applicants gave evidence on sentence. In the course of doing so, Marchant said he formed the intention to kill Mr Treganna earlier that day and his motivation was to teach a lesson. At one stage he said it was to teach the deceased a lesson but later that it was to teach Mr Crawt a lesson. Asked whether the deceased had done anything to Mr Marchant for the latter to kill him, Mr Marchant replied "not that you would see as justified, no". Mr Marchant said there was something which he saw as a reason but refused to disclose what it was. Mr Marchant agreed that he had lured Mr Treganna to the park under the pretence of selling jewellery. His Honour concluded that, "It is apparent that what had occurred to the deceased was an execution" but "The evidence does not allow me to say what the purpose of that killing was". 10 Although Marchant was not charged with them, the Crown raised in the cross-examination of him, whether he had been involved in the Form 1 offences to be taken into account against Crawt. Marchant declined to answer and, although he did not say so, it is to be inferred that this was on the grounds that his answers might tend to incriminate. On this topic Greg James J regarded himself as:- "31 …. entitled to have regard to those matters of the robberies and the car jacking, as far as concerns the offender Marchant, only on the limited basis that so much of that involvement as is proved or admitted might be offset against the but limited protestations made by him in the witness box of matters that might be thought to found some prospect of rehabilitation many years in the future." 11 His Honour said that otherwise he would not take those matters into account against Marchant. 12 Greg James J formed a pessimistic assessment of Marchant's future prospects saying, inter alia:- "46 … Marchant, … on the basis of his conduct, his prior record and his own evidence has given me no reason to believe he will ever be a person who will be able to be rehabilitated. I see little point… in considering that the extending to him of a non-parole period of any sort would be of any benefit to him or to the community… "47 I turn to such information as I have concerning his circumstances. He has a wife and child with whom he has little links. … He has spent a great deal of his life in custody. He has, both when speaking unknowing that he was being overheard and also when giving evidence in the witness box, persuaded me that he is a person who is almost without prospect of redemption. 48 … He is a person likely to re-offend, who presents a real danger to the community, whether in custody or not." 13 In this connection it is appropriate to record that after the arrest of the 2 offenders, conversations between them were the subject of surreptitious recording. In words which by no means overstate the position, Greg James J said of these conversations:- "27 … the offender Marchant in those conversations, for whatever purpose, whether as a result of the effect upon him of many years of institutionalisation in gaol, whether for the purpose of seeking to protect himself within the gaol system as showing he was a tough and ruthless man, whether for some purpose of bravado or for the purpose of placing himself in some light, he might think was to his benefit when speaking Crawt, boasted and glorified in what he had done in a way that at the least can be described as vicious, callous and ghoulish." 14 Some of Marchant's evidence is also instructive. He said that when he was growing up his father spent a considerable period in prison and gave him instruction as to how one should behave in gaol. He said that he would not give the same instruction to his son and it would be better for the latter to be away from Marchant's influence. Asked why, he said:- "Because I live my life by a different set of rules than normal people. To my detriment I know. But it's just as I said before, my eleventh year now in prisons. And to gain any sort of respect - it's mistaken respect, it's fear. But to deal with problems in gaol is through violence. Violence in the end of discussions, it's the final measure. So, and I decided that I would - not consciously - but I adapted that mentality outside." 15 Despite the findings his Honour made he observed that Marchant was still not a person in whose case preventative detention could be justified. His Honour recognised that things might change between the time of his assessment and the time at which Marchant might become eligible for parole and in his orders provided for a parole period. His Honour observed that it was shorter than might be expected having regard to the 38 years term which his Honour thought appropriate but concluded that 32 years was the minimum period for which Marchant should be kept in detention. 16 Marchant was born on 8 January 1974. His antecedent record commences in July 1992 when he was convicted of possessing an unlicensed and shortened firearm. Save and except for years when he was in custody and possibly 2002, when he was in custody for most of the year, he seems to have committed offences every year since. Prior to being sentenced by Greg James J, Marchant's offences included:- * 3 of armed robbery * 3 of escaping from lawful custody * 1 of steal from the person * 5 counts of stealing a motor vehicle or the like * 2 of larceny * a number of other offences of dishonesty * sundry other offences 17 He committed offences while on parole to which he was admitted on 28 March 1994, and 2 August 1996. He was again admitted to parole for a period of 1½ years on 14 May 2002. The murder of Mr Treganna occurred on 5 August 2002, 11 weeks later and was thus also committed while on parole. 18 In the case of Crawt, Greg James J concluded, inter alia:- "53 …although it seems likely the Offender Crawt did not agree well in advance to there being a killing, the evidence and the conversations that were overheard in gaol make it perfectly clear that when the killing occurred, he was present, knew what was going on and at that point of time assented to it. I reject the account put initially to the psychiatrist whose report was tendered on his behalf and is marked Exhibit 1 and given by Crawt in evidence that he only considered what was going to occur was a knee capping in which his associate would shoot the deceased in the knee caps and they would abandon him, that injury so cruelly ignored, in that bush park that night.

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54 I accept that he was perfectly aware that his associate was at least likely to inflict serious injury on the deceased or kill him using the gun. At best, in my view, it can be said of his state of mind at the time that he callously did not care what the co-accused did to the deceased and that he was content to participate with his co-accused in an offence to which s18 applies such that he was involved in a felony murder, and in accompanying the accomplice to the scene and in what he did there, he adverted to the prospect of death or serious injury if he did not in fact intend there to be a killing. Even on his own account, that injuries were to be limited to knee capping, he plainly intended to be present and involved in a planned exercise of the deliberate infliction of grievous bodily harm. 55 Whilst I would not hold, on the evidence, that I was satisfied beyond reasonable doubt that he intended positively the death of the (deceased), that makes little difference in my view to his culpability because it is plain that he was, at the very least, acting in a callous and vicious way. 56 That said, he was not the actual killer nor do I find that he actively encouraged Marchant to kill. … 58 … He was not the principal. Indeed his presence does not seem to have really contributed much to the incident notwithstanding that after the event in the conversations to which I have referred he too participated in exercises of ghoulish bravado, boasting about what involvement he would have had, had he had the opportunity on the night in question. 59 In his evidence he suggests it was important to do that to protect oneself and establish a gaol reputation. Whatever be the reason he did it, that does not make it estimable and as to much of what he said, a valid insight is gained into a mind which, if minded to conform to that ethos or culture, displays its viciousness. 19 Although about 5 years younger than Marchant - Crawt was born on 3 June 1978 - he also has an extensive record. It commenced in 1994 and includes- * 4 counts of robbery or robbery in company * 10 counts of stealing, attempting to steal or being carried in a stolen motor vehicle * 4 counts of break, enter and steal * 1 count of escaping from lawful custody * Numerous driving offences, including 3 counts of driving in a manner dangerous 20 At the time of the murder he was on parole having been released to a 2 years period of parole only 2 months earlier. Greg James J recorded that he was also on conditional bail in respect of other matters in respect of which he was later acquitted. 21 Those factors were also present at the time of the commission of the offences on the Form 1. The seriousness of offences of the type is recognised by the legislature's prescription of imprisonment for terms of up to, respectively, 10, 25 and 20 years for them given the terms in which they were charged. The circumstances of the first were that in the course of the Applicants purportedly having a test drive of a motor vehicle the employee accompanying them had a gun pointed at his head, was forced into the back of the car, with the top half of his body pushed down into the foot-well behind the driver's seat, driven around, threatened, both immediately and with injury to his family if the police were involved, and finally released while the Applicants drove off in the vehicle. 22 The second of the Form 1 offences occurred when the Applicants entered a sports store, Crawt armed with the handgun and Marchant with a small axe, forced 3 employees into a back room and tied them up, forced 2 other persons into the same room and decamped with a deal of merchandise, estimated to be worth over $10,000. The third offence occurred when Crawt approached the operator of a Post Office, Supermarket and Newsagency, and when offered assistance displayed the handgun in the belt of his pants. The operator fled. Soon afterwards so did Crawt to where Marchant was waiting in the stolen motor vehicle. 23 There was tendered on Crawt's behalf a report from Duffy, Barrier, Robilliard. It records that Crawt's mother was a "junkie" with whom he had no contact after he was 5 and that thereafter he was brought up by his paternal grandmother with limited contact with his father and siblings. Crawt acknowledged that by early adolescence he was beyond his grandmother's control. During the 10 years prior to the report he had spent only 11 months outside juvenile detention centres or adult prisons. 24 Psychological and other testing revealed Crawt's intelligence to be in the lowest 12% of the population and significant scores were recorded for Antisocial, Narcissistic, Negativistic (Passive/Aggressive), Schizoid and Sadistic features and in respect of alcohol and drug dependence. 25 The author of the report recorded that the impression gained was of an individual who used illicit substances when they were available to him. She said also that Crawt had "a well-entrenched acceptance of criminal mores and behaviour" and that he saw "the world as functioning according to the law of the jungle, a world in which he must use aggression and intimidation to survive". His future plans were to survive in custody and he saw no value in rehabilitation programmes available in custody - "they are things you do or otherwise they won't let you out". The author opined:- "With the passing of the years the more prominent antisocial, self serving aspects of his personality will typically soften, hopefully rendering him a more willing candidate for professional intervention". 26 On the topic of Crawt's future Greg James J said:- 64. In his case however, his own evidence, and what is said by the psychiatrist, indicates some prospect that in the far future there might - if things proceed well for him in the meantime - be some degree of rehabilitation, such that I do not have of him so little hope as I had of the offender Marchant. 27 In addressing the topic of the offences on Crawt's Form 1, Greg James J said:- 16. The Crimes (Sentencing Procedure) Act 1999 provides in respect of those matters by s33(3) that if the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. It is clear that in taking those offences into account, the court falls under a duty to pass, in respect of them, a component of the sentence on the principal offence which would reflect, to some degree, the substantial nature of those offences and their gravity. The court is required to have regard to the totality of criminality involved. This means that the sentence that would be passed must, of necessity, be greater than it would have been had it been passed only for the principal offence. It does mean also, however, that the sentence component referable to the offences taken into account would, of itself, reflect greater mitigation than would have been appropriate to a mere plea of guilty to charges of those offences in an indictment. The adoption of this course is such as to show a degree of contrition evidenced by the accused's willingness, as it used to be expressed, "to clear the slate" and although regard must still be had to personal deterrence and retribution, nonetheless it is appropriate to have regard to the encouragement that a mitigated sentence reflected in the component of the overall sentence to be imposed would afford to the accused and to others to use this procedure. 17. In summary then on this topic, the sentence imposed upon the offender Crawt for the murder will have to include a significant additional component arising out of his having admitted the offences and asking they be taken into account. It should not include any additional component reflecting any additional criminality over and above the facts of the offences as they have been pleaded in the form one schedule before me and that additional component should not be the same extent as it would have been had the offences been the subject of pleas entered to charges on the indictment charging them but less. The offender Crawt will receive the benefit of those matters.

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Marchant Gound 1 The sentence is manifestly excessive. 28 Mr Zahra SC, appearing for Marchant disclaimed any desire to impugn the findings of fact made by Greg James J. He also conceded that a very long sentence of imprisonment was called for. However, he submitted that a review of sentences in a number of recent cases for what were said to be "broadly similar murders" demonstrated that the sentence and non-parole period were manifestly excessive and that the longest non-parole period open in the proper exercise of his Honour's discretion was imprisonment for 25 years. 29 The cases referred to included R v Offer [2000] NSWSC 839, [2002] NSWCCA 341, R v Naismith [2000] NSWSC 1024, R v Brewer [2001] NSWSC 99, R v Hyland and Ors [2001] NSWSC 470, and, on appeal, R v Yates and Ors [2002] NSWCCA 520, R v Fernando [2001] NSWSC 294, R v Kalache [2002] NSWSC 507, R v Penisini and Others [2003] NSWSC 892, [2004] NSWCCA 339. 30 For its part the Crown drew attention to the well known passage from the judgment in R v Morgan (1993) 70 A Crim R 368 at 371 that:- "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411:- 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.'" 31 It may be accepted that in all of the cases relied on on Marchant's behalf, the sentences imposed were less than that imposed on Marchant although in R v Fernando the undiscounted starting point was 40 years and in R v Penisini 42½ years, periods not dissimilar to that reflected in Marchant's 38 years head sentence combined with the 10% discount allowed for his plea. In the case of Penisini the amount of the discount is not recorded in the report of proceedings in this Court. The remarks on sentence at first instance reveal it was 20%. 32 As is to be expected, all of the cases do have differences from the instant one and unless one were to descend to great detail, unprofitable to seek to explore the significance of those differences which include number of victims, in one case that the victim was a police officer and killed on that account, the offender's role, the time at which any relevant intention was formed, the existence of cognitive deficits, offenders' antecedents, conditions of incarceration, and prospects of rehabilitation. However it may be remarked that in none of those cases was the offender assessed as so likely to re-offend and to have so little prospects of rehabilitation. In none of the cases cited, except for Peninsini - see [2004] NSWCCA 339 at [93] was it said that the sentence imposed was at the top of the available range. 33 Furthermore, I do not accept that the group of cases relied on by Mr Zahra constitute a representative selection of those relevant. An appreciation of the appropriate range of sentences available to Greg James J in the instant case requires attention to not only decisions where lesser sentences have been imposed but also to those where higher, including life, sentences have been imposed. Examples include Veen v R (No 2) (1987-1988) 164 CLR 465; R v Garforth (Unreported, CCA, 23 May 1994); R v Harris (2000) 50 NSWLR 409, especially at [99]; R v Kanaan [2001] NSWSC 959 and, on appeal, [2005] NSWCCA 385. 34 Consideration of these cases shows they also display considerable differences compared with the circumstances here but again it is not necessary to detail these. Nor do I refer to the cases to suggest that the sentence imposed on Marchant should have been higher. What the cases do, however, is to illustrate the weight that may properly be given to considerations of dangerousness, callousness, lack of remorse, absence of prospects of rehabilitation and the heinousness involved in a complete disregard for the mores of civilisation and the value of human life. 35 Greg James J was correct in recognising that preventative detention could not be justified. However he was also conscious of the decision of the High Court in Veen v R (No 2) where, at 473, it was said:- "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 preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." 36 A little later, after referring to remarks of a writer on the topic, the majority of the Court continued (at 474):- "The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment." 37 In that case the Court also considered the relevance of an offender's history. It was said (at 477):- "…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentences to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instance offence. To do so would be to impose a fresh penalty for past offences Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, 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. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 38 To Marchant's misfortune, many of the factors to which I have referred operated so as to properly lead towards a high sentence. It must be remembered that the right of this Court to interfere with the sentence impose by Greg James J is dependent on error being shown. Given his Honour's primary findings, I am unable to accept that the longest non-parole period open to his Honour was one of 25 years or that the sentence he imposed was outside the legitimate exercise of his sentencing discretion. 39 I would dismiss this ground of appeal.

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Marchant Ground 2 The learned sentencing Judge applied a wrong principle in taking into account offences with which the Applicant had been charged but to which he had pleaded not guilty in determining his prospects of rehabilitation. 40 In support of this ground it was submitted that if Marchant had not been sentenced at the same time as Crawt, Greg James J would have known nothing of these further matters, Marchant should have been presumed innocent of them and his Honour should have disregarded them entirely. Furthermore, it was submitted they had no relevance to the prospect of rehabilitation of Marchant. 41 Experience indicates that the first of these propositions is probably correct. It is rare for the Crown to adduce evidence, other than the commission of offences conceded, directed to denying claims of rehabilitation. However that does not make such evidence, when the Crown choses to adduce it, or the evidence is otherwise given, irrelevant. Marchant's prospects of rehabilitation were a matter relevant for his Honour's consideration and, insofar as the evidence of the offences referred to on Crawt's Form 1 which was before his Honour properly bore on the topic of Marchant's rehabilitation, the evidence was both relevant and admissible against Marchant. It was quite sufficient to lead to the conclusion that Marchant was involved in those offences also. 42 Nor was his Honour obliged to presume Marchant innocent of them. The presumption of innocence has its place. A person is not to be punished for an offence until that offence is appropriately proved. However the presumption does not require a court, faced with persuasive evidence of the commission of an offence to ignore that evidence or presume the contrary. 43 If Mr Zahra's submission in this regard were correct an offender, appearing for sentence in respect of an offence some years old, could solemnly advance a case of rehabilitation and the Crown could not adduce cast iron evidence of the commission of similar offences during the intervening period even if some of those offences were as recent as the week before sentence. Such an approach would reduce a deal of fact finding on sentence to a farce. 44 It must not be forgotten that rehabilitation and prospects thereof are matters that argue in mitigation. An offender thus has the onus of persuading a sentencing judge of their existence. Once evidence is admitted of even the possibility of there having been further offences, or of some other area of an offender's activity which, if established, would argue against the positive findings sought, it would be wrong for a judge to just ignore that evidence in deciding whether to make those findings. 45 Of course, for his Honour to take these other offences into account they had to relevant, in this particular instance, to the prospect of Marchant's rehabilitation. That they occurred so soon after the offence for which he was to be sentenced and so long before sentence was to be imposed argues against their being relevant. However murder, in this case the deliberate killing of another human being, stands so far outside normal human conduct that one would expect it to have some emotional impact even on its perpetrator. Participation in other offences, with either the same weapon or one of a similar nature, in circumstances where there was a risk of other deaths occurring strikes me as, at least in principle, very relevant to Marchant's reaction to the murder itself. The situation would be a fortiori if - though it is not clear this was the case - that reliance was being placed on Marchant's behalf on him having said to someone on the night of the killing words to the effect that he had done something that night which he was not proud of. 46 On the other hand, apart from Marchant's participation in the other offences, Greg James J had before him the recorded conversations between the 2 Applicants and Marchant's evidence on sentence. In light of these matters, and notwithstanding Greg James J regarded himself entitled to have regard to Marchant's participation in the other offences, it is by no means apparent that such participation had, in the peculiar circumstances, any weight. 47 During the hearing of the appeal, Mr Zahra added another factor in support of this ground. While Crawt was giving evidence, counsel appearing for the Crown asked him about the involvement of Marchant in the first of the offences on Crawt's Form 1. Counsel for Marchant then objected. I shall detail more of the circumstances when considering the first of the grounds relied on in Crawt's appeal. It is sufficient to observe at this stage that what is relied on by Mr Zahra is a remark by his Honour during the course of argument in the following terms:- "Right, that leaves me with a situation where I am not going to find in your client's case that your client committed offences to which he has not pleaded guilty which he has not sought that I take into account because to do so would be to infringe a basic rule of law and fairness, right. So, your client's sentence for the murder will not be aggravated by my findings in his case that he committed the additional crime." 48 Mr Zahra submitted that "one would presume that counsel for Mr Marchant then took a course subsequent to be given that indication by his Honour that they were not going to be relevant to the process of sentence. He did not cross-examine Mr Crawt". 49 It certainly is the fact that counsel then appearing for Marchant did not cross-examine Mr Crawt. On the other hand, it by no means follows that that was the result of anything his Honour said. Prior to the Crown's cross-examination of Crawt, counsel for Marchant had been offered the opportunity of doing so and had declined. There was plenty of evidence in the material tendered by the Crown to prove Marchant's involvement in the further offences, none of which was challenged. I find it impossible to conclude that his Honour's remarks or the failure to cross-examine created any possibility of prejudice. And of course, it is a matter of record now that Marchant in the proceedings before Blanch J admitted involvement in those offences. 50 It must also be borne in mind that Greg James J adhered to the approach apparent in the last sentence of the passage I have most recently quoted. In the light of this and the other matters to which I have referred in the last 4 paragraphs, I take the view that this further factor upon which Mr Zahra sought to rely provides no basis for allowing the appeal. All aspects of this ground fail.

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… He might get an advantage because he did tell but he is not entitled to claim an advantage for not telling. He is not entitled to say: Look, I'm terribly sorry and contrite and so forth but I am going to be loyal instead so give me the advantages of contrition but don't take into account that I am being lawful to this code." 53 After the short adjournment the Crown resumed questioning Crawt as to whom he was with on the occasions of the 3 offences in his Form. His evidence was that it was Marchant. 54 Earlier, Crawt had given evidence to the effect that it was a tragedy that the victim of the murder died and he hoped the family got over it. He said he wasn't in control on that occasion and he made sure that the victims of the other offences were not hurt. His evidence indicates that he saw as a significance the fact, as he asserted, that he had the firearm on the other occasions. He acknowledged that no one likes having a gun put to their head though adding "what it does is make you stronger". He said that hopefully the long sentence he expected and rehabilitation courses during it would change his way of thought and his feelings towards the victims had some part to play in entering pleas of guilty. 55 In support of this ground it was submitted that the only remarks his Honour made as to Crawt's prospects of rehabilitation were those in paragraph 64 of his remarks on sentence quoted above, and these went no wider than to encompass this earlier evidence of Crawt's. It was further submitted that Greg James J's remarks amounted to an offer to Crawt of some advantage if he were to break the criminal's code of silence. 56 In the circumstances I have outlined it could not fairly be thought that the most probable reason for Crawt answering as he did was because of any actual contrition as distinct from avoiding or minimising the significant risk that none at all would be found if was unwilling to answer the questions tending to implicate Marchant. In the circumstances there is nothing to justify the inference that paragraph 64 is not a fair reflection of any entitlement Crawt had to an assessment of his contrition and prospects of rehabilitation. 57 I would also reject the proposition that Greg James J's remarks amounted to an offer to Crawt which entitled him to some discount if he answered questions properly asked of him. 58 This ground fails.

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PAISH: I do, your Honour. 62 Mr Lynch was counsel for the Crown. There followed discussions between him and counsel for Marchant and the matter was adjourned. On the following day the Crown preferred 2 charges (which I quote as transcribed), viz. 1. For that he on 7 August 2002 at Blacktown in the State of New South Wales, while in the company of another person, detained Trevor Guiness (?) without his consent and with intent to obtain advantage, a Mitsubishi Magna registered number ALP27B. 2. For that he on 7 August 2002 at Neutral Bay in the State of New South Wales, being armed with a dangerous weapon, namely a .32 calibre pistol, robbed Robert Archer (?) of Nike merchandise valued at $10,200 the property of Robert Archer trading as Spoil Sport Clothing. 63 Marchant pleaded guilty and asked that 2 offences on a Form 1 be taken into account. The Form 1 was not before this Court but the transcript of proceedings before Blanch J describes them as car jacking in company and being armed with intent to rob. It is apparent from what was said that the detain in company charged and the car-jacking referred to on the Form 1 arose from the stealing of the vehicle referred to in the specification of the first offence referred to on Crawt's Form 1. That was the only "charge" against Crawt arising from that incident. The second offence charged against Marchant accorded with the second on Crawt's Form 1. The second offence on Marchant's Form 1 accorded with the third on Crawt's Form 1. 64 Proceedings were further adjourned to 4 November and on that day Marchant was sentenced in respect of the second charge, and taking into account the matters on the Form 1, to imprisonment for a fixed term of 7½ years from 4 November 2004 and in respect of the first charge to imprisonment for a fixed term of 5 years from 4 November 2008. 65 Both sentences were thus concurrent with the sentence for murder. Crawt complains that as he received, to quote Greg James J's remarks, "a significant additional component" in his sentence in consequence of the offences on his Form 1, he has a justifiable sense of grievance. 66 The transcript of proceedings before Blanch J records that counsel for the Crown handed up "a copy of the judgment of Justice Greg James relating to the present sentences the offender is serving". Remarks on Sentence of Blanch J tend to indicate that he must have received a full copy of Greg James J's remarks and not merely those relating to Marchant. His Honour said:- "It also has to be taken into account that the co-offender was dealt with on the basis of somewhat less criminality but with matters being taken into account by the Supreme Court when sentencing him and it is perfectly obvious that the sentencing regime there did not involve any lengthening of the sentence of the co-offender and it would be wrong as is conceded by the Crown here for there to be any lengthening of the non-parole period in respect of this prisoner." 67 Consideration of paragraph 17 of Greg James J's remarks, wherein his Honour said that "the sentence imposed upon the offender Crawt for the murder will have to include a significant additional component arising out of his having admitted the (Form 1) offences" makes clear that the remarks just quoted are both wrong and obviously so. To the extent to which Marchant has been treated more leniently in respect of the further offences in consequence of this error, I find it impossible to conclude that any sense of grievance Crawt has is justifiable. That Marchant was the lucky recipient of an obvious mistake provides no basis for concluding that the effect of the error should be compounded by extending its consequences to Crawt. 68 On the other hand it is not possible to conclude that the passage quoted was the only cause of Marchant receiving no additional sentence for the offences which in practical terms were the equivalent of those on Crawt's Form 1. It is likely that there were at least 2 further factors. One was the enormity of the sentence of 38 years including a non-parole period of 32 years Marchant was already serving. Considerations of totality would have severely limited any increase in the effective term Blanch J could have imposed. 69 The second was that the Crown invited Blanch J to take the course he did even though it must have been obvious that it was bound to result in an appeal by Crawt, whose sentence had been increased on account of what were virtually the same offences. When, in addition to the result, one has regard to this approach, quite different from that taken against Crawt when he was sentenced, the claim of a justifiable sense of grievance is made out. A fortiori is this so when Marchant elected not to admit these offences as early as Crawt did and required the expenditure of further public money and resources in bringing them to finality. 70 However, it must be recognised that disparity merely enlivens a discretion in this Court to reduce a sentence otherwise proper. It does not require that the disparity be eliminated - see R v Doan (2000) 50 NSWLR 115 at [18-19]. While considerations of totality would have severely limited any increase in the effective term Blanch J could have imposed, they are not of the same weight when one is considering a sentence substantially shorter and which, for murder on its own, could well have been of the order of two-thirds that imposed on Marchant. In these circumstances, while I am of the view that this Court should interfere on this ground, I would not adopt an approach which involved no increase on account of Crawt's Form 1 offences in the sentence otherwise appropriate for murder. On account of considerations of parity I would however give them less weight than would otherwise be the case. 71 This conclusion makes it unnecessary to consider whether Greg James J's approach to the Form 1 offences accorded with that laid down in A-G's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146.

[23]

Crawt - Ground 4 The sentence was manifestly excessive. 72 In light of the conclusion at which I have arrived that this Court should interfere on parity grounds it is also strictly unnecessary for me to consider this ground of appeal although the considerations relevant to it obviously have a bearing on what sentence this Court should substitute for that imposed at first instance. The principal ones are those set forth in some of paragraphs 53 to 59 of Greg James J's remarks on sentence that I have quoted above. Furthermore, Crawt's claim for any lesser sentence is not enhanced by other matters to which his Honour referred, nor his record, nor some of the remarks of the psychologist who saw him. 73 But issues implicit in the second Ground of Appeal are also relevant here. I have indicated that Greg James J was entitled to increase Crawt's sentence by an amount characterised as "substantial". However, A-G's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 makes it clear that any increase in sentence by reason of Form 1 offences should be appreciably lower than the penalty which would have been appropriate had those offences been charged and furthermore that it is the factors of personal deterrence and retribution to which weight is to be given in the determination of the increase - see at [42]. Although it was also said, at [43], that the specification of these 2 factors was not intended to be exhaustive, it is difficult to read the judgment as not implicitly excluding the remainder of the five well known purposes of sentencing identified in Veen v R (No 2), viz. general deterrence, rehabilitation and protection of the community. 74 Retribution and personal deterrence in this context would be retribution and personal deterrence for the offences on the Form 1. It is not reasonably likely that a judge would make error, other than perhaps in degree, in effecting an increase to reflect the first of these but, at least in circumstances such as those here, care would be required to ensure that there was no doubling up in the weight given to the factor of personal deterrence. Even in the absence of a Form 1, the commission of the murder while on conditional liberty and against the background of Crawt's record, combined with his attitude as revealed in the intercepted conversations and in the psychological report, would have required much more than usual weight be given to personal deterrence. In one sense, the commission of the Form 1 offences was but a manifestation of the attitude so revealed. 75 Notwithstanding Crawt's participation in the killing of the deceased was less than that of many murderers, even by the standards of the law of the jungle he had no rational motive to participate in the killing and his callousness both in advance and as exhibited in the recorded conversations together with his demonstrated recidivism and disregard of parole conditions meant that the sentence imposed on him for the murder alone should have been substantially higher than one falling within the usual range for murder. Prior to the murder he committed over a dozen serious crimes. I do not forget the limits to which protection of the community can be taken into account but the time had arrived when the community was fairly entitled to have imposed on him a sentence which, while not outside the available range, might properly be regarded as harsh. 76 Even on account of retribution alone, such a sentence should have been increased appreciably to reflect the Form 1 offences. 77 However, as I have said, it is unnecessary to decide whether, despite these matters, it was manifestly excessive.

[28]

(3) In lieu thereof, sentence Crawt to imprisonment for a non-parole period of 24 years commencing on 10 August 2002, with a balance of term of 6 years. 81 HIDDEN, J: I have had the benefit of reading in draft the judgment of Hulme J. 82 In relation to Marchant's application, I agree that ground 2 does not call for this Court's intervention. The course of events before Greg James J was unusual, and I have some misgivings about his Honour's having taken into account offences which Marchant had not admitted and to which he had pleaded not guilty, even on the limited issue of his prospects of rehabilitation. However, I find it unnecessary to express a concluded view about the propriety of that course. I agree with Hulme J that this was not a matter to which any significant weight was given, and that there was abundant other material from which was open to his Honour to conclude that those prospects of rehabilitation were bleak. 83 However, I am unable to agree with Hulme J's disposition of the first ground of Marchant's application. In my view, the sentence is manifestly excessive. Senior counsel for Marchant referred to a number of cases, which Hulme J has listed at [29] of his judgment. Sentences in those cases ranged from twenty years and six months to thirty-four years. It is sufficient to examine briefly the four cases in which the heaviest sentences were passed. 84 In Offer [2002] NSWCCA 341, the offender was sentenced to thirty-four years imprisonment with a non-parole period of twenty-five years for a premeditated murder, with three counts of soliciting to murder being taken into account on a Form 1. He was also sentenced to a concurrent term of ten years on a related charge of causing grievous bodily harm with intent to murder. He had pleaded guilty during his trial, and had no significant criminal record. 85 In Naismith [2000] NSWSC 1024, the offender was sentenced to concurrent terms of thirty-three years with a non-parole period of twenty-five years on two counts of murder, both premeditated. He was found guilty at trial. He had no prior convictions and was seen to have prospects of rehabilitation. 86 In Fernando [2001] NSWSC 294, the offender was sentenced to imprisonment for thirty years with a non-parole period of twenty-two years for a premeditated murder in prison. The victim was his cousin, whom the offender believed to have implicated him in another murder for which he was serving life imprisonment at the time. He had pleaded guilty in the Local Court. 87 In Penisini [2004] NSWCCA 339, the offender was sentenced to imprisonment for thirty-four years with a non-parole period of twenty-three years for the murder of a police officer in the execution of his duty. The killing was not premeditated, but it was accompanied by an intention to kill and the offender's motive was to avoid apprehension for other offences. He pleaded guilty, but he had a bad criminal record and was on parole at the time. 88 The differences between each of these cases, and between them and the present case, is obvious. However, the link between them is that they are very serious cases of murder which, while not calling for the maximum sentence of life imprisonment, demanded heavy determinate sentences. In his judgment at [30], Hulme J cites the familiar passage from the judgment of Hunt CJ at CL in Morgan (1993) 70 A Crim R 368 at 371. It must not be forgotten, however, that the former Chief Judge was there referring to the futility of challenging a sentence by comparison to the sentence in one other case only. To seek guidance in a particular case by reference to a series of other cases is entirely appropriate, and has long been the practice in this Court. 89 Enough of a pattern emerges from the cases referred to by senior counsel for Marchant to cause me concern about the thirty-eight year sentence passed upon him. In so saying, I acknowledge the very serious features of this case which Hulme J has recounted. I also acknowledge that the sentences in some of the cases referred to were influenced by pleas of guilty, and the timing of them, and that, as Hulme J observes at [31] of his judgment, in two of them the undiscounted starting point was very high. Nevertheless, I am satisfied that the sentence in the present case cannot stand. 90 I would grant Marchant leave to appeal, allow his appeal, and quash the sentence passed upon him. I would sentence him to imprisonment for thirty-five years, with a non-parole period of twenty-eight years, to date from 19 September 2002. 91 As to Crawt's application, I agree that ground 3 is made out and that that is a sufficient basis for this Court to intervene. However, given the sentence I propose for Marchant, I would substitute a lesser sentence than that proposed by Hulme J, so as to preserve the relativity between the two offenders. I would grant his application for leave to appeal, allow his appeal, and quash the sentence imposed upon him. Taking into account the matters on the Form 1, I would sentence him to imprisonment for twenty-eight years, with a non-parole period of twenty-two years, to date from 19 August 2002. 92 HALL, J: The applicants seek leave to appeal against sentences imposed on them on 23 October 2003 in respect of the murder of Nathan Treganna. 93 On 23 October 2003, the applicant, Marchant, was sentenced to imprisonment for 38 years with a non-parole period of 32 years. The principal ground to the application by Marchant is that the sentence was manifestly excessive. 94 I have had the benefit of reading in draft the judgments of Hulme, J. and Hidden, J. 95 In relation to the applicant, Marchant, there was no challenge to the findings of fact made by the sentencing judge in his remarks in sentence and nor could there have been. 96 I have considered at length the remarks on sentence, the relative objective and subjective circumstances relevant to the offence and I have examined the cases referred to by learned senior counsel for the applicant, Mr. P.J. Zahra, SC., in his written submissions in paragraphs 18 to 24 in evaluating the submission that the head sentence and the non-parole period were said to be manifestly excessive. 97 The sentencing judge made a number of important findings. They include the following:-

[44]

(d) In Regina v. Penisini & Ors [2003] NSWSC 892, the offender was 24 years of age at the date of sentence. He was sentenced to imprisonment for 34 years with a non-parole period of 23 years in respect of the murder of a police constable. The circumstances of the case placed the offence within the upper range of seriousness for an offence of murder, given the aggravating circumstances of shooting a police officer in the execution of his duty. The offence occurred in circumstances involving the use of a firearm and an attempted hijacking of a motor vehicle and it occurred in company. Additionally, the objective criminality was significantly compounded by the fact that the offender was on parole for earlier very serious offences. The mitigating circumstances included the offender's plea of guilty, a degree of remorse and the fact that the offences were not part of a criminal activity that was planned or organised in any meaningful way. The prospects for his rehabilitation were considered to be somewhat bleak. In summary, the offence of murder in this case attracted a particular degree of heinousness from the reason for its commission, namely, to avoid arrest by a police officer known to be acting in the course of his duty. Wood, CJ. at CL. noted that, had there been any real degree of premeditation or planning, then, notwithstanding the plea of guilt and remorse, he would have imposed a life sentence. The offence occurred in circumstances of haste, in the heat of the pursuit and without much opportunity for sensible reflection on the offender's part. 100 I agree with respect, with the observation made by Hulme, J. that comparisons are difficult and are rendered difficult by the variation in each case on factual matters relevant to criminality. In particular, I consider the observations recorded in the judgment of uHuHHHulme, J. recorded at [32] to be of particular significance. What, in my opinion, is significant in the application by the applicant Marchant are the findings made by the sentencing judge which I have set out in paragraph [97]. 101 Mr. Zahra, SC., on behalf of the applicant, acknowledged that the process of comparing the results in other very serious cases of murder has its limitations and what must be looked at is whether the sentence is within the range relevant to the objective gravity of the particular offence and to the subjective circumstances of the particular offender. He acknowledged that it does not involve a consideration of whether the sentence in this case is more severe or lenient than the sentences referred to in the cases in the applicant's written submissions. 102 Mr. Zahra also referred to the Judicial Commission statistics which indicate that, in total, some 70% of sentences for murder contained a non-parole period of 18 years or less. In so observing, Mr. Zahra accepted that this matter falls within the top range of sentences for matters of its kind, observing, however, that with the non-parole period of 32 years, that that is greatly in excess of the 70% of sentences for murder. 103 The cases to which the Court was referred in the written submissions on behalf of the applicant were said to be relatively recent decisions in matters which fall into defined categories of premeditated execution murders. Mr. Zahra, SC. submitted that they contain sentences for matters which share a number of significant features of this case, including luring the victim to an isolated area and intentionally killing the deceased. Whilst he acknowledged the distinguishing features identified in the Crown's written submissions, it was submitted that the Crown had not contended that the decisions were not representative of sentences imposed in execution-type murders. 104 It is, as earlier indicated, essential to have regard to the distinguishing features of each of the decisions to which we have been referred. In particular, it is necessary to have regard to the nature of the premeditation involved in this case insofar as that matter is central to determining the level of criminality involved. Equally, it is important to have regard to the fact that there is no evidence as to motive, whilst observing, as Mr. Zahra submitted, that, even on the listening device material, the applicant, Marchant, himself may be said to have been unable to identify why he killed the deceased. 105 In the above analysis I have not overlooked the importance of Marchant's criminal record, nor the factors of aggravation identified by the Crown arising under s.21A(2) of the Crimes (Sentencing Procedure) Act 1999: namely:-

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Cases Cited (17)

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