Hoeben CJ, Campbell J, Natalie Adams J, Harrison J
Catchwords
252 CLR 601
Langbein v R [2008] NSWCCA 38
181 A Crim R 378
Markarian v The Queen [2005] HCA 25
228 CLR 357
Muldrock v The Queen [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
252 CLR 601
Langbein v R [2008] NSWCCA 38181 A Crim R 378
Markarian v The Queen [2005] HCA 25228 CLR 357
Muldrock v The Queen [2011] HCA 39
Judgment (3 paragraphs)
[1]
Solicitors:
M McKenzie - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2010/51520
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: [2012] NSWSC 1475
Date of Decision: 14 December 2012
Before: Harrison J
File Number(s): 2010/51520
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
On 15 June 2012 the applicant was found guilty after trial of the murder of John Garda (the deceased) at Lennox Head on the north coast of New South Wales. The applicant killed the deceased by cutting his throat with a knife.
The applicant was sentenced to imprisonment for 28 years with a non-parole period of 21 years commencing 26 February 2010 and expiring 25 February 2031, with a balance of term of 7 years expiring 25 February 2038. The maximum penalty for murder, pursuant to s 19A of the Crimes Act 1900 (NSW) is imprisonment for life. A standard non-parole period of 20 years is prescribed pursuant to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed on him by Harrison J at Sydney on 14 December 2012. The single ground of appeal is expressed as follows:
The sentence and the non-parole period were excessive and in error having regard to the trial judge's conclusions of midrange seriousness, his findings as to subjective circumstances and the applicant's special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
Factual background
The murder of the deceased took place at the applicant's home, which the deceased had visited on the afternoon of 8 February 2010. The deceased was aged 60 at the time of his death. He died at the scene as a result of the wound to his neck. His body was later taken from the premises and buried in a bush grave by the applicant and his brother. The applicant was arrested on 26 February 2010 and has remained in custody since that time.
The deceased was a businessman with interests in the Byron Bay area. On the afternoon of 8 February 2010 he went missing. This was not reported to the police until two days later.
The applicant lived at that time with his partner, Tanya Barbaro, and their young child in a house owned by him at Lennox Head. The applicant was then aged almost 39 years of age. Ms Barbaro left the family home with their son and checked into accommodation at the Byron at Byron Resort on the night of 8 February 2010.
Ms Richardson was a young woman who lived in a flat downstairs at the same address. She rented the premises from the applicant. At approximately 3.30pm on 8 February 2010 while the applicant's brother was present, Ms Richardson heard raised voices coming from the house upstairs. She heard the offender yelling "you fucking cunt" a few times and then a thud like something hitting the floor. She heard screams consistent with a male in pain.
At this point the applicant's brother left her flat and ran up the back stairs of the house and knocked on the door. It was his evidence that when he entered the premises, he saw blood everywhere and eventually saw the deceased lying on the floor. His eyes were open and he was dead. At the time Ms Richardson noticed blood coming through the ceiling of her flat from upstairs.
In due course the applicant's brother was charged with using the deceased's credit cards and being an accessory after the fact in that he assisted the applicant in the burial of the deceased. He also assisted in cleaning the applicant's house. On 16 February 2010 the applicant's brother was arrested and charged with the fraud and larceny offences arising from the taking and use of the credit cards. He agreed to assist the police in proceedings against the applicant.
On 26 February 2010 the applicant attended the Lismore Police station and handed investigators a map showing the location of the body of the deceased. The deceased's body was located at the place indicated on the map. An autopsy revealed that a wound to the neck caused his death. The wound was consistent with having been inflicted by a knife using moderate force. There was a wound on the cheek but there were no injuries consistent with a struggle having occurred. There were no defensive wounds on the deceased.
At trial the applicant denied that he killed the deceased and said that it was his brother who had done so. By their verdict the jury clearly disbelieved the applicant's version of events.
Proceedings on sentence
Harrison J found that the disposal of the deceased's body by burial in a remote location constituted a matter of aggravation. In making that finding, his Honour noted that the degree of aggravation was less than would have been the case had there been evidence of mutilation.
His Honour noted that the reason for the applicant's attack on the deceased was never explained. Accordingly, the only finding which his Honour could make was that the death of the deceased appeared to have been the result of a drug transaction which went wrong. His Honour noted that the applicant's version of what occurred was wholly at odds with the facts that the jury must have found in arriving at its verdict. He also noted that the applicant did not give evidence in the sentence proceedings and in that regard, must be taken as having adhered to the version of events given by him at trial.
His Honour found that the offence was not planned, nor was it premeditated. It involved the use of a weapon and there was no provocation. His Honour rejected the proposition that the evidence of a struggle in the house gave rise to some doubt as to the way in which the deceased was killed. His Honour did so on the basis that the medical evidence suggested a right handed assailant cutting the deceased's throat from left to right at a position behind the deceased. His Honour found that this was done by the applicant who was right handed. His Honour noted that notwithstanding the evidence of a struggle in the house, the body of the deceased showed no signs of injuries consistent with defending some kind of ongoing attack. His Honour also noted that the wound was very severe, being long and deep, and that its infliction required at least moderate force. His Honour found beyond reasonable doubt that the applicant cut the deceased's throat from behind, using a kitchen knife, and that he did so with an intention to kill him.
His Honour found that the offence fell into the middle of the range of objective seriousness for offences of this kind.
His Honour then reviewed the applicant's subjective case. Because the applicant did not give evidence, this information was obtained from the history recorded by Mr Borenstein, psychologist, whose report was tendered on behalf of the applicant.
The applicant told Mr Borenstein that his parents had separated when he was aged 12 and that his father was a violent alcoholic. He described his childhood as "pretty tough". Most of his father's violence was directed towards the applicant's brother although he also experienced some of this. The applicant attended between four and five different schools and was described by Mr Borenstein as "academically challenged". He was dyslexic, suffered from attention deficit disorder and had difficulty reading and writing. Between the ages of 16 and 17 the applicant had experimented with his sexuality and had been sexually and physically abused by a gay bouncer with whom he had lived for a period of time.
The applicant commenced training as a chef at the age of 17. While working at Hamilton Island he met an older woman with whom he maintained a relationship for five years. Eventually they moved to Byron Bay where he opened a restaurant. It was at this time that his partner met someone else. The applicant continued to run the restaurant for about four years. He developed a dependence on alcohol and illicit substances. In particular, he developed a heavy addiction to cocaine.
Although the applicant underwent treatment for his cocaine addiction in Austria, he returned to Australia and continued using recreational drugs. He described himself as always having had a problem with alcohol and conceded that he was an alcoholic. He had never undergone any formal psychological counselling or therapy. The applicant told Mr Borenstein about experiencing anxiety, particularly in gaol. He had completed a computer course while in prison and planned to complete his Higher School Certificate. According to Mr Borenstein, the offender did not display any serious symptoms of psychiatric disorder such as psychosis. There was no evidence of perceptual disturbance such as delusions or hallucinations. The applicant presented as cognitively intact.
His Honour found that the applicant had never accepted any responsibility for the death of the deceased. No submissions were made on his behalf concerning either the existence or extent of any contrition or remorse. His Honour found that the applicant was wholly unremorseful and that he remained in a continuing state of denial about any part played by him in the murder of the deceased.
Although his Honour found the use of a weapon to be an aggravating factor, he had already taken this into account when assessing the objective seriousness of the offending and did not take it into account by way of a further detriment to the applicant.
His Honour found the following mitigating factors:
The offence was unplanned.
The offence was decidedly out of character.
The applicant had co-operated to a helpful degree with the authorities in terms of pre-trial disclosure.
He had directed the police to the location where the body of the deceased was buried.
He had no criminal record of any particular relevance.
In relation to specific deterrence, his Honour found:
"52 I do not consider that the offender will present any assessable or identifiable risk to the community of reoffending upon his release. The very nature of this crime is particularly idiosyncratic. It does not represent or form part of an existing chain or course of criminal conduct. It appears to have occurred spontaneously and reactively to circumstances that remain unexplained. The need for specific deterrence is therefore low. The prospects for rehabilitation are in my view correspondingly high."
His Honour qualified that finding by observing that the fact that the applicant continued to maintain his innocence was suggestive of a fundamental and continuing lack of insight with respect to the strength of the evidence against him and with respect to the incredible account that he gave at trial of what had occurred when the deceased was killed. In relation to general deterrence, his Honour found that the gratuitous and unexplained nature of the offence warranted general denunciation.
In relation to "special circumstances" his Honour found as follows:
"55 At the time of his arrest the offender was drinking five to ten schooners, four to five nights a week. Mr Borenstein has referred to recreational drug use and a difficult childhood. There are also some matters of a personal nature and a need for ongoing therapy. This is also the offender's first full time custodial sentence.
56 The offender is currently housed at the Multi Purpose Unit at the Goulburn Correctional Centre where he has been since 21 October 2012. He is classified as remand bed placement. He has been managed with Special Management Area Placement at his own request, which was submitted upon his original reception on 21 February 2010. The offender's current placement is based upon fears he has expressed for his own safety. Details of these fears are scant, beyond a submission from counsel on his behalf that he fears some form of retribution from his brother, whom he attempted to inculpate at the trial, and Mr Kohavi who allegedly supplied the drugs to the deceased, who remains unpaid, and who is therefore allegedly vulnerable himself to others for their loss and potentially disgruntled and correspondingly vengeful.
57 The consequence of his current protected status is that the offender is released from his cell for some hours less than otherwise would be the case if he were free to circulate among the general prison population and his current access to activities is also reduced. This imposes a hardship upon him that means that his imprisonment will be more onerous than if he were not classified in this way.
58 It must be noted that the fears said to have been expressed by the offender for his own safety relate only to his brother, who is due for consideration for release on parole on 15 May 2013, and Mr Kohavi, whose current prison term was not clarified, but which I understand is not extensive. In these circumstances it is difficult to structure a sentence for this offender that effectively accommodates any hardship that he is likely to endure in the short term, having regard to the sentence that I am minded to impose. Clearly enough, the concerns that the offender has expressed do not easily translate, if they translate at all, to a factor attracting variation of the statutory ratio of parole to non-parole periods. I propose to take account of the fact that the offender will remain restricted and in protection for a short time. However, I do not consider that this is a matter to which I can give any particularly great weight.
59 I find in particular that none of the matters to which I have been referred in this context amounts in my opinion to special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999."
By way of conclusion his Honour set out his findings as follows:
"65 I am satisfied, consistently with the jury's verdict, of the following facts beyond reasonable doubt. The deceased attended the offender's home for the purposes of some drug-related transaction, involving the sale or the supply by the deceased to the offender of a quantity of drugs, probably cocaine. In circumstances that remain largely unexplained, a violent disagreement erupted between the two men. The offender ultimately killed the deceased by cutting his throat violently from behind using a large knife. I find that in doing so the offender intended to kill the deceased. The offender's partner Tanya Barbaro had earlier been told to go to a nearby resort in order for her to be absent from the premises when the drug transaction was to take place. The offender's brother and Lily Richardson who were together in the flat downstairs overheard the commotion and what I find was a violent struggle between the offender and the deceased that culminated in his death. Warren Purtill went upstairs and was eventually let into the house by the offender at some time shortly following the death of the deceased. The deceased was then seen by Warren to be lying as described by him on the kitchen floor against an island bench. Neither the offender nor Warren called the police. Warren took charge of disposing of the body of the deceased by wrapping it in his canvas swag and driving with the offender to a nearby bushland setting in his utility where the deceased's body was buried. Warren spent several days cleaning the house and disposing of what remained of the deceased's possessions and his car. The offender left for Queensland and ultimately approached police with information about the location of the deceased's body."
When imposing sentence and by reference specifically to the standard non-parole period provided for by this offence his Honour said:
"67 I have already indicated that I accept that this offence falls to be considered as an offence in the middle range of seriousness for offences of its type. Such a conclusion does not thereby lead to the automatic imposition of the standard non-parole period for murder. All factors in favour of and against the offender have to be considered and included in the process of reasoning that leads to the calculation of what is a proper sentence in this case. I have approached the matter in that way."
The appeal
The applicant noted that in relation to objective seriousness, his Honour found that the offence was unplanned. He noted that insofar as subjective matters were concerned, his Honour found that the offence was out of character and that the applicant had given considerable and helpful co-operation to the authorities. His Honour found that he had no criminal record, that there was no risk of re-offending, that the crime was idiosyncratic and that the need for specific deterrence was low. The applicant noted that his Honour found that this was his first custodial sentence, that there was a need for ongoing therapy and that there were issues of hardship arising from the way in which his sentence was to be served. The applicant noted that the non-parole period imposed was in excess of the standard non-parole period, even though the sentence complied with s 44(2) of the Sentencing Act in that the non-parole period consisted of 75% of the head sentence.
The applicant submitted that his Honour's findings of midrange objective seriousness and of the mitigating factors to which reference was made above indicate that the non-parole period imposed gave rise to error. This was because his Honour's remarks on sentence did not articulate any basis which would adequately support the imposition of a sentence with a non-parole period in excess of the standard non-parole period.
The applicant submitted that the absence of any explanation for why the non-parole period imposed was greater than the standard non-parole period prescribed was indicative of error when one took into account the matters in mitigation which his Honour found.
The applicant submitted that because error in his Honour's approach had been established it was necessary, in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601, for the applicant to be resentenced.
It was not clear from the ground of appeal and the applicant's written submissions whether his complaint was limited to alleged error because the non-parole period of 21 years was in excess of the standard non-parole period prescribed of 20 years in circumstances where the offence was found to be in the midrange of objective seriousness, or whether, in a way not precisely articulated, his Honour erred in not making a finding of special circumstances.
The position was clarified somewhat in oral submissions. The applicant's argument relied upon the form of s 54B of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) as it was when his Honour imposed sentence. At that time s 54B relevantly provided:
" …
(2) When determining the sentence for the offence the court is to set the standard non-parole period as a non-parole for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A.
(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify on the record of its reasons each factor that it took into account …"
Section 54B was amended to its present form in 2013.
By reference to the previous form of s 54B the applicant submitted that his Honour had erred by failing to provide a record of his reasons for imposing a standard non-parole period which was longer than the standard non-parole period.
Consideration
When assessing the objective seriousness of the offence, his Honour took into account the following:
The offence involved the use of a weapon, i.e. a knife.
The wound to the deceased was severe and its infliction required at least moderate force.
The wound was inflicted upon the deceased with an intention to kill.
The applicant's disposal of the deceased's body was an aggravating factor.
The applicant was wholly unremorseful.
The gratuitous and unexplained nature of the offence required general denunciation.
His Honour's approach to objective seriousness was in accordance with the guidance provided by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 in that no subjective matters were taken into account when assessing objective seriousness. Moreover, his Honour did not give to the standard non-parole period determinative significance. Rather his Honour took it into account as a legislative guidepost but also took into account other matters. His Honour made it clear that he was applying the approach set out in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51] whereby the sentencing judge should identify all factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence.
His Honour in the exercise of the sentencing discretion was required to take into account competing considerations when engaging in the instinctive synthesis process. What his Honour's reasoning made clear and what was emphasised in Muldrock v The Queen was that the standard non-parole period does not represent the upper limit for a non-parole period for offences that are found to be in the middle range of seriousness. The middle range is, as the term implies, a range. As Basten JA observed in Ramos v R [2015] NSWCCA 313 at [48]:
"…A finding that an offence is in (or outside) the middle of the range of objective seriousness can be of limited assistance and usually involves a high degree of imprecision."
In Muldrock v The Queen at [28] the High Court said:
"Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."
To the extent that this ground of appeal asserts that a finding that an offence is within the midrange of seriousness automatically requires a commensurate finding that the standard non-parole period should apply or be appropriately adjusted to take into account other factors, is the very error identified in Muldrock v The Queen, i.e. giving to the standard non-parole period determinative significance.
The interpretation for which the applicant submitted would have required his Honour to have said something to the effect of "the reason I have departed from the standard non-parole period is …. ". Such an approach would inevitably involved a two-stage process of sentencing and is contrary to the approach to sentencing in Markarian v The Queen. Not only was it not necessary for his Honour to approach the sentencing exercise in that way but such an approach would have given rise to "Muldrock error". His Honour did comply with s 54B as interpreted in Muldrock v The Queen by identifying the matters which he took into account when assessing the objective seriousness of the offence and by balancing those against the subjective and mitigating factors which his Honour identified.
If there were any doubt concerning how his Honour was approaching the standard non-parole period, this was resolved by what his Honour said at [67] of his judgment and which has been set out at [27] hereof. His Honour made it clear that just because a finding is made that an offence falls to be considered as an offence in the midrange of seriousness did not mean that there should be an automatic imposition of the standard non-parole period applicable to that offence. Rather all factors had to be taken into account of which the standard non-parole period is only one, albeit one of some importance.
The "special circumstances" identified in the submissions to his Honour were:
There was a need for ongoing therapy because of the applicant's drinking, drug use and difficult childhood.
It was his first custodial sentence.
He is a SMAP prisoner because he has fears for his safety as a result of which his imprisonment will be more onerous.
His Honour was entitled to reject these matters as constituting special circumstances. This involved an exercise of discretion by his Honour. As has been said, an adjustment for special circumstances "raises so many matters of discretionary character that this Court should be very slow to intervene" (R v Cramp [2004] NSWCCA 264).
In Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) said:
"73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive."
Similar observations were made by Spigelman CJ in R v Fidow [2004] NSWCCA 172 at [19].
Ultimately, the degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge - R v Cramp at [31]; Trad v R [2009] NSWCCA 56 at [33]. The presence of circumstances which are capable of constituting special circumstances does not compel a court to make such a finding and reduce the non-parole period: R v Fidow at [22]. So wide is this discretion that a finding of special circumstances does not compel a variation in the non-parole period: R v CM [2013] NSWCCA 341 per R A Hulme J at [39].
His Honour set out clearly why the matters identified, which provided a basis for a finding of "special circumstances", did not satisfy him to that effect. Leaving aside the courses which were available to the applicant in prison, the parole period of 7 years was more than adequate for any therapy. It has been held by this Court on a number of occasions that the fact that a person is undergoing his or her first custodial sentence is not of itself a basis for a finding of special circumstances (Langbein v R [2008] NSWCCA 38; 181 A Crim R 378 at [112]; Clarke v R [2009] NSWCCA 49 at [12] and Collier v R [2012] NSWCCA 213 at [36]). In relation to the applicant's status as a SMAP prisoner, his Honour found that this was unlikely to continue much beyond the date when sentence was imposed.
Whichever approach to the ground of appeal is relied upon, the ground has not been made out.
This ground of appeal was fundamentally misconceived. Accordingly, I would refuse leave to appeal against sentence.
CAMPBELL J: I agree with Hoeben CJ at CL.
N ADAMS J: I agree with Hoeben CJ at CL.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 May 2016