Objective Seriousness of Offence
68 Ms Burgess submits that the present offence lay towards the lower range of objective seriousness for the crime of murder. It was submitted that this was a spontaneous and unpremeditated act of violence carried out by the Applicant, who had used heroin shortly before the incident.
69 It was submitted that there is insufficient evidence for the Court to be satisfied that, at the relevant time, the Applicant had the intention to kill. The case was left to the jury by Wood J on the basis that the Crown had to prove either intent to kill or intent to cause grievous bodily harm. It was noted that Wood J said that he was satisfied that the jury had found beyond reasonable doubt that the deceased's skull fracture was sustained as he fell backwards down the stairs and that the pelvic fractures occurred when he landed on the ground below. His Honour found that the injuries to the liver and scrotum were caused by the Applicant kicking the deceased on a number of occasions, although there was evidence that the injuries to the victim's genitals may have been caused by him falling from the railing whilst straddling it. Had the Applicant not kicked the deceased after he fell down the stairs, it was submitted that it would have been very difficult for the Crown to prove that he had the requisite intent for murder. It was the subsequent kicking of the deceased which was critical in this regard. It was noted that Wood J did not make any finding as to whether the Applicant had intent to kill or an intent to do grievous bodily harm, no doubt because his Honour had no option but to impose a sentence of life imprisonment.
70 Ms Burgess observed that, in the 1992 appeal to the Court of Criminal Appeal, Gleeson CJ (at page 2) observed that the Applicant's admissions were consistent with a conclusion that his conduct "to say the least" was done with the intent to cause grievous bodily harm.
71 It was submitted that the prison-informer witness, Mr X, gave evidence that, whilst the Applicant admitted punching and kicking the deceased, he kept on telling him "it was an accident". The Applicant admitted in his record of interview with police that he had punched the deceased, but said nothing about his state of mind at the time (Q/A.32-35). The Applicant also admitted, when the victim was on the ground, "he was shaking like he was trying to get up" so he kept on kicking him (Q/A.32). It was submitted that the taking of money appeared to have been an afterthought (Q/A.32). Ms Burgess submitted that, at its highest, the evidence discloses intent to do grievous bodily harm and that the Court would not be satisfied beyond reasonable doubt that the Applicant acted with intent to kill.
72 The Applicant relied upon a passage in the decision of the Court of Criminal Appeal in Apps v R [2006] NSWCCA 290 where Simpson J (Whealy J agreeing) said at [49]:
"Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way [(2004) 60 NSWLR 168] , while the Court expressly alluded to mental states, followed this by the parenthetical observation that 'intention is more serious than recklessness'. However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct."
73 Although the present Applicant's offence was committed long before the introduction of the standard non-parole period system, Ms Burgess submits that the above passage is apposite to a determination of the objective seriousness of the Applicant's offence.
74 It was submitted for the Applicant that an assessment of the objective seriousness of the Applicant's offence played an appropriate part in the present application where, if the Court determines to fix a determinate sentence, the term of that sentence will be affected by a finding concerning objective seriousness.