R v HEARNE

The Rejection or Ignoring of Evidence of 3 witnesses. 29 In written submissions in support of the appeal, it was put:- "It is submitted that the sentencing judge erred in rejecting out of hand the evidence of Tiffany Thorne and Scott Van Meurs as to their observations of the incident and assaults by the police without intimating that he proposed to do so. Similarly he erred in ignoring the evidence of Cassandra Wee as to there having been a fight whereupon the Applicant was struck blows by the police prior to any stabbing and the police saying "we don't want fucking drugs or something like that". 30 There is no doubt that Wood CJ at CL did reject the evidence referred to in this submission although nothing has been advanced to indicate that his Honour's rejection of the evidence was "out of hand". The fact is that his Honour accepted inconsistent evidence from Constables Semple and Neville. And what evidence to accept was primarily a decision for his Honour. The 2 persons just mentioned were called whereas Tiffany Thorne and Scott Van Meurs were not, their "evidence" being contained solely in written form. Cassandra Wee was called but no reason has been shown why his Honour was under an obligation to accept her. There is no substance in this ground.

Sentence Manifestly Excessive 31 There was no criticism of the learned sentencing judge's indication that the charge of malicious wounding, considered in isolation, merited minimum and additional terms of 6 and 2 years respectively and we are content to proceed on the basis that his Honour's indication was correct. In that regard it might not be inappropriate to note that the Judicial Commission statistics for all offenders sentenced to full time custody for this offence - about 15% avoided full time custody - show median full and minimum/fixed terms of 5 years and 3 years respectively. Comparable figures for offenders under 21 with no prior convictions (albeit only 16 offenders) are 5 years and 2 years. 32 However, it should be recorded that it was not submitted by the Crown that the general sentencing pattern revealed in the statistics was too low. 33 The sentence which Wood CJ at CL thought the murder offence considered alone merited "involving a minimum term of the order of 18 years, with an additional term of 5 years" is a relatively high sentence. Judicial Commission statistics for the offence of murder show that the median full term for all offenders is about 18 years and the median minimum (it is unlikely to be fixed) term is about 14 years. Comparable figures for offenders who fall into the category of "No Priors, Plea Guilty, Less than 21 Years" are about 18 years and 12 years. Because the statistics are dealt with in 2 year increments and rounded upwards, these figures are likely to be a little on the high side. The statistics do not, of course, contain any details of the nature of the offences and accordingly they provide at best a rough guide in any particular case. 34 A murder which is not premeditated either in act or intention, and the intention when formed is to inflict grievous bodily harm rather than an intention to kill, does not obviously fall into the more serious half of murder offences. R v Ashfield, R v Lowe, and R v Everett, cases referred to in a schedule to these Reasons, are authority for the proposition that, at least generally, an offence involving an intent to kill is more serious than one where the intention is to inflict grievous bodily harm. The approach taken in a number of other cases in that schedule also illustrates this point. We are, with respect, unable to agree that the instant offence fell within the "upper range of seriousness" (of murder offences) "viewed objectively" as Wood CJ at CL in paragraph 55 of his remarks (quoted above) characterised it. We are comforted in that conclusion by the fact that counsel who appeared for the Crown on the appeal was unable to refer the Court to a comparable case where the sentence was as high as that here. 35 We do not forget the circumstance that at the time Constable Forsyth was engaged in apprehending, or at least dealing with a drug dealer but it is equally important to remember that many murder victims are entirely innocent. 36 Another matter to be noted is that the term of 27 years ultimately imposed reflects relatively little discount on the grounds of totality compared with the simple accumulation of the sentences Wood CJ at CL thought appropriate to each offence considered in isolation, particularly when it is remembered that the offences themselves occurred in the one incident of criminality, seconds apart. We would not criticise the discount of 4 years in the minimum term - 20 instead of 24 - (assuming the 24 years is itself appropriate) but the additional term of 7 years reflects none. And there is nothing in the Applicant's past which suggests that, after a period of 20 years in prison he would need 7 years to re-adjust to life outside or by way of supervision. 37 Allowance must be made for the discretion which sentencing involves and for the need to which his Honour adverted to discourage the carrying and use of knives. However, it must also be recognised that in this case the knife was carried with a view to protection rather than to assist in the commission of an offence. Thus, in terms of objective criminality we would not regard the murder of Constable Forsyth as as serious as most cases of felony murder of which R v Mills and R v Robinson referred to in the schedule are examples. 38 Included in that schedule are summaries of a number of cases selected by no particular criteria other than that they do, in totality, provide a guide as to the appropriate sentencing range. While the sentence in some might be thought to be lenient, a number of the cases do inspire the following comments:- (For convenient comparison with the sentence of minimum and additional terms of 18 and 5 years indicated by Wood CJ at CL as appropriate for the Applicant's murder offence, we have included an indication of the minimum and additional terms imposed in the cases mentioned.) Bowhay 16/7 The criminality was worse than that involved in the Applicant's murder offence. De Gruchy 21/7 The criminality was far worse than the totality of the Appellant's. Gash 15/5 The criminality was comparable to the totality of the Appellant's. Graff 18/5 The criminality was substantially worse than the totality of the Appellant's. Hungerford 18/6 The criminality was substantially worse than that involved in the Applicant's murder offence. Mills 16/7 The criminality was significantly worse than that involved in the Applicant's murder offence. Nelson 14/7 The criminality was worse than that involved in the Applicant's murder offence. Webster 14/6 The criminality was substantially worse than that involved in the Applicant's murder offence.

Some, but not all, of these offenders were young. 39 A further feature which is to be noticed in a number of cases in the schedule is the tendency in the case of young offenders to increase the additional term at the expense of the minimum term - see for example, R v Bowhay, R v Howard. Indeed, in R v Townsend & Cooper (unreported, CCA, 14 February 1995), where Hunt CJ at CL said that the nature of the offence made youth of lesser importance than it might otherwise have been in the determination of the total sentence, his Honour still regarded youth as an important factor in considering whether there were special circumstances warranting a longer than usual additional term (and a corresponding reduction in the minimum term). No such approach was adverted to or, except to a minimal degree, adopted by Wood CJ at CL and, although we do not suggest it is obligatory that such a course be followed, it is a further feature of the sentence which raises a question whether his Honour paid adequate attention to the Applicant's youth. 40 In the result, the conclusion at which we have arrived is that the sentence imposed on the Applicant should be quashed. Although we have identified but one aspect of his Honour's reasons with which we disagree, when regard is had to the Applicant's plea, his remorse, and prior record, and more particularly his youth, lack of premeditation and to the fact that the intent found was only to do grievous bodily harm and a comparison is made with the pattern of sentencing illustrated by the Judicial Commission statistics and the cases listed in the schedule, it seems to us inescapable that the sentence imposed on the Applicant was manifestly excessive. 41 We are of the view that, considered in isolation, the Applicant's murder offence merited a sentence of 18 years. No less is required by the seriousness of his offence but we do not think any higher sentence would give adequate weight to the factors of lack of premeditation, absence of intent to kill, and youth. We, of course, do not ignore the other factors, including his plea which operate in his favour. We also take account of a number of certificates obtained by the Appellant in prison and indicating that, while there, he has been applying himself towards some self-improvement. The Applicant's youth would also lead us to impose a shorter than usual minimum term. Although R v Howard, R v Lowe and, when regard is had to the difference in criminality, perhaps R v Mills and R v Webster, argue for a lesser period, the minimum term should not however be less than 13 years. 42 When account is taken of the offence of malicious wounding, and having regard to principles of totality, we think the result should be a minimum term of 16 years and an additional term of 5 years. 43 And to those who would suggest this sentence is too light, we invite attention to the following. While, of course, no sentence this Court could impose could equal the harm the Applicant did to Constable Forsyth, for acts which might fairly be characterised as stupidity, albeit dangerous stupidity, the Applicant will be incarcerated until he is, at least, almost 35. The impact of that incarceration will not cease immediately on his discharge and he will thus have very substantially lessened opportunities of a career, wife and children. That is no minor punishment and, as has been said before - per Hulme J in R v Spiteri (unreported, CCA, 24 February 1999) - the impact of a 10 year minimum term is substantially more than twice as severe as that of imprisonment for 5 years. Those remarks apply with more force when the sentence is of the length of that proposed here. 44 The result which we think appropriate can be achieved by leaving the fixed term of 6 years from 3 March 1998 which Wood CJ imposed for the offence of malicious wounding and imposing the sentence for murder so it commences after the Applicant has served 3 years of that fixed term and is thus in part concurrent and otherwise consecutive to that fixed term. That course is permitted by s47(2)(b) and s55 of the Crimes (Sentencing Procedure) Act 1999. 45 The new sentence proposed envisages that there will have been a finding of special circumstances - see s44(2). They exist in that the new sentence will be partly cumulative to that imposed on the malicious wounding charge. 46 Accordingly the orders of the Court are:- 1. The appeal is allowed. 2. The sentence imposed on the Applicant on 4 June 1999 in respect of the offence of murder is quashed. 3. In lieu thereof the Applicant is sentenced in respect of the offence of murder to imprisonment for a term of 18 years, commencing on 3 March 2001, such term to include a non-parole period of 13 years and to be concurrent from that date with the sentence imposed on 4 June 1999 for malicious wounding. 4. The Court specifies as the date upon which the Applicant shall be eligible for release on parole, 3 March 2014.

R v Ashfield and Hughes (unreported, Badgery-Parker J, 16 December 1994) These offenders were sentenced to penal servitude for minimum terms of 16 years and additional terms of 5 years in respect of the murder of a 6 year old child of Ashfield. The victim had been grossly abused by numerous blows including 34 separate injuries to the head and neck.

Badgery-Parker J took the view that the attack by each was in a fit of rage contributed to in no little measure by their upbringing and the circumstances in which they were placed but that protection against further offending was not a significant factor in the sentencing. Both had pleaded guilty albeit only at the time of commencement of their trial but his Honour was satisfied that both were remorseful. Ashfield was 25 and Hughes 20 at the time of the offence but, given that Hughes was in loco parentis at the time, His Honour said that Hughes' youth provided no reason for any great reduction in the sentence otherwise appropriate. (But see below)

Ashfield (unreported, CCA, 27.2.98) This Court reduced the above sentence imposed on Ashfield to minimum and additional terms of 14 and 5 years on the grounds that there was a significant psychiatric component or similar vulnerability present and, to quote the words of Wood CJ at CL. "murder resulting from an intention to do grievous bodily harm is not as objectively serious as murder involving premeditation or a specific intention to kill".

R v Barry [2000] NSWCCA 138 This offender was sentenced by Newman J to minimum and additional terms of 18 and 6 years for the murder of his wife, a sentence which also reflected the offender's criminality in maliciously wounding his step-daughter during the same incident. (He was sentenced to a concurrent term of 12 years for that offence.) He had pleaded not guilty to murder on the ground of diminished responsibility. He had a history of alcoholism and of violence towards his wife. At the time of the offences he was subject to an apprehended violence order and was on a bond for assaulting her. In the month before her death had expressed an intention to kill her. On the night of the offence he attended his wife's home, stabbed his step daughter and, after forcing both victims to lie on the floor , stabbed his wife 4 times, 3 of the wounds being to her right breast. The fatal wound extended 160 cm into her body. There was psychiatric evidence that the Applicant suffered from depression and personality disorders but alcoholism was his main problem. This Court refused to reduce the sentence. R v Bowhay [2000] NSWCCA 54 Dunford J sentenced this offender to penal servitude for a minimum term of 16 years and an additional term of 7 years. The trial Judge found that the Applicant formed an intention to kill albeit possibly only during the course of belting up the deceased. The death was caused by stabbing, strangling and stomping and in his interview with the police the offender indicated he was proud of what he had done.

The offender had had a "most unfortunate" childhood and had a bad criminal record albeit almost exclusively for offences not involving violence. He was diagnosed as having an anti-social personality disorder. He was 18½ at the time of the offence and Dunford J recorded that "the authorities dealing with the reduced significance of general deterrence relate to juveniles, rather than young adults, and have very limited, if any, application to offenders who conduct themselves as adults and commit crimes of considerable gravity" and "the sentence should be longer than is the case in many other murder sentences, but the increase should be weighted towards the additional term rather than the minimum term because of the offender's youth". This Court declined to interfere with the sentence. R v De Gruchy (unreported, Grove J, 17 December 1998) This offender was sentenced to 3 concurrent terms including minimum terms of 21 years and additional terms of 7 years in respect of the murder of his mother, his sister and brother. The killings lacked premeditation but were attended by seemingly frenzied beatings of the victims and were without apparent motive. Grove J was unable to make any finding concerning contrition. The risk of re-offending was regarded as significant although the offender had no prior convictions. The offender would seem to have been nearly 18 at the time of the offence. R v Everett (unreported, CCA, 13 December 1995) This Court reduced a sentence of minimum and additional terms of 18 and 6 years respectively to minimum and additional terms of 16 and 5 years for an offender who deliberately set his wife on fire with petrol. Observing that the original sentence was at or very close to the top of the range for sentences imposed for "relationship" murders, the court placed reliance, in reducing it, on the fact that the trial judge had not found an intent to kill. The offender had pleaded not guilty. Youth does not seem to have been a factor. R v Gash (unreported, Grove J, 20 July 1995) This Prisoner, who pleaded guilty to offences of murder and malicious wounding with intent to do grievous bodily harm was sentenced to penal servitude for a minimum term of 15 years and an additional term of 5 years and, in respect of the second charge, to a concurrent sentence of 6 years penal servitude. After ingesting a deal of cannabis and alcohol he chased another patron of a hotel and attacked him by slashing him with a knife the prisoner carried. In a separate incident soon afterwards he attacked another person with the knife, killing this second victim. Neither victim was known to the offender who told the police he did not know why he had committed the offences. He was almost 21 at the time. He had had a disturbed childhood, suffered from a personality disorder of a mixed type and had a minor criminal record. He was regarded as contrite.

R v Graff (unreported, Barr J, 25 September 1998; CCA, 29 January 2001) This offender was sentenced to penal servitude for a minimum term of 18 years and an additional term of 5 years on a charge of murder and a concurrent term of 8 years on a charge of robbery in company. The robbery in company occurred when the offender and 2 others attacked and beat into unconsciousness the driver of a taxi they had hired. The murder occurred some 9 days later when they attacked and kicked to death another taxi driver. Also taken into account was an offence some 2 years earlier of assault occasioning actual bodily harm when the offender was one of 5 persons who punched and kicked into unconsciousness a person on a railway station and a second offence committed 6 months earlier of the malicious infliction of grievous bodily harm when the offender punched another victim who fell to the ground and suffered permanent severely handicapping brain damage. Barr J observed that the two offences taken into account were so serious that they should materially affect the sentence imposed.

The offender was 20 at the time of his offences, was of average to below average intellectual ability and had difficulty in controlling his aggression. He was regarded as presenting a serious risk of violence when under the influence of alcohol and had a minor prior record. He pleaded guilty at a late stage and that event was regarded as some evidence of the beginning of remorse. R v Howard and others (1992) 29 NSWLR 242 Eight offenders set upon a victim who they lured to them and inflicted injuries from which he died. Four pleaded guilt to manslaughter and one was convicted by a jury of that offence. The other 3 were found guilty of murder. With the exception of one, Young, it was difficult to differentiate between the 8 in terms of their culpability, all having been engaged in a joint enterprise. All showed contrition and a willingness to seek rehabilitation. The 3 convicted of murder and J appealed against sentence but this Court declined to interfere. The intention of those convicted of murder was to inflict grievous bodily harm. (It is only the sentences for murder which are relevant here but all are included for completeness.)

L, aged about 16½ at the time of the offence and who pleaded guilty to manslaughter was sentenced to a minimum term of 7 years and an additional term of 2 years. He had no prior convictions and his subjective circumstances were extremely favourable.

F, aged 16, pleaded guilty to manslaughter. He had a :tragically deprived" background and gave evidence against others. He was sentenced to a minimum and additional terms of 4½ years and 2 years.

C, aged 16¾ years, pleaded guilty to manslaughter. On probation at the time of the offence, he had a significant record, although he had made a significant effort in custody. He was sentenced to minimum and additional terms of 8 years and 2 years.

J, aged about 16½ years, pleaded guilty to manslaughter. His subjective circumstances were very favourable and, belatedly, he offered to give evidence . He was sentenced to minimum and additional terms of 5½ and 2½ years.

Young was convicted of manslaughter. He was aged 17¾ years, his subjective circumstances were favourable. He was not involved in the planning and there was doubt as to the extent of his involvement. He was sentenced to minimum and additional terms of 5 and 3 years.

Mihailovic, convicted of murder, was aged almost 18½. His physical contribution was limited to a punch and 1 or 2 kicks to the victim's body. His subjective circumstances were very favourable. This Court remarked that "his age, whilst plainly attracting leniency, does not have the compelling significance of the ages of F, J, C and L". He was sentenced to minimum and additional terms of 10 and 8 years.

Morgan, convicted of murder, was aged 17¼. He would seem to have been shown to have played a greater part than some or all of the others, including stamping on the head of the victim. His subjective circumstances were reasonable or good and he was regarded as having considerable potential. He was sentenced to minimum and additional terms of 10 and 8 years.

Howard, convicted of murder, was aged a little over 18. He was not involved in any premeditation and his involvement was impulsive. He left the scene when he thought the others were going too far. He had a minor criminal record but otherwise good subjective circumstances. He was sentenced to minimum and additional terms of 8 and 5 years.

R v Heron [2000] NSWCCA 312 This offender killed his victim by stabbing him during a fight in an hotel. This Court refused to interfere with a sentence of minimum and additional terms of 14 and 4 years imposed by Sully J after conviction by a jury. Sully J found that the intent was to do grievous bodily harm. The offender had had a sadly disadvantaged and troubled life and for a substantial part of it had lived in circumstances where violence was commonplace and aggressive behaviour useful for both survival and reputation. The offender had surrendered to police.

R v Hungerford (unreported, Newman J, 17 August 1993) This offender who had pleaded guilty was sentenced to penal servitude for a minimum term of 18 years and an additional term of 6 years for the murder of a stranger who he had come across and raped. He had intended to kill and did so by striking her a number of times on the head with a piece of concrete. His Honour took the sexual assault into account as an aggravating feature of the offence of murder. At the time of the offence the offender was under the influence of alcohol. When sober he was pleasant and had no criminal record of consequence. He had a personality disorder which two psychiatrists described as borderline. He was remorseful. At the time of the offence the offender was 20 and Newman J recorded that "considerations of rehabilitation may be properly preferred to considerations of punishment and general deterrence". His Honour also found that the victim was murdered to cover up the offender's sexual attack on her. R v Lowe (unreported CCA, 19 February 1992) This offender was sentenced to a minimum term of 9 years penal servitude and an additional term of 5 years and 4 months following his conviction for murder. He had in addition been in custody for 15 months prior to trial. His offence consisted of ramming the head of a much smaller youth against a telegraph pole causing the latter's death. The offender was aged 17¼ at the time and no prior convictions and was regarded as having good prospects of rehabilitation. The offence was not premeditated, the offender being affected by the prior ingestion of intoxicating liquor. Significance was placed on the fact that the intent of the offender at the time was to do grievous bodily harm. The offender had pleaded not guilty. The Court of Criminal Appeal increased the additional term at the expense of the minimum term imposed by Newman J.

R v Mills (unreported, CCA, 3 April 1995) This Court upheld a sentence including minimum and additional terms of 16 and 7 years imposed by Wood J on an offender convicted of murder who had, during the course of an armed robbery of a liquor store, in the excitement or panic of the moment, discharged a shot-gun, killing the proprietor or store employee. The robbery had been pre-planned. The offender was 23, had no remorse and in the past had shown no interest in becoming rehabilitated. The 7 years of the additional term reflected the view that the offender would need support for a lengthy period of time after release. At least 2 judges of this Court rejected the proposition that felony murder involves a lower level of culpability than cases of murder involving an intention to kill.

R v Nelson (unreported, CCA, 25 June 1996) The circumstances of this offence were that during the course of an altercation the victim was repeatedly punched and kicked by Paul and Maree Nelson to the extent that he was rendered unconscious. After half an hour or more he was trussed up and placed in the boot of a car. He was driven around various suburbs of Sydney for some 2 hours. The vehicle stopped, the deceased who had untied himself, was told to get out and he was then savagely attacked with a metal baseball bat. His head was effectively pulped.

Paul Nelson was regarded as having had an intention merely to inflict grievous bodily harm but it was a case where in that intention was regarded as reflecting similar criminality to other cases involving an intention to kill. He had pleaded guilty only after his trial had progressed for 1 week and there had been some co-operation with and assistance to the police. He had no prior history of violence. This court declined to interfere with a sentence comprising a minimum term of 14 years and an additional term of 7 years. McInerney J, with the concurrence of Gleeson CJ and Studdert J, did however say that the sentence was at the top of the range. The age of the offender is not disclosed in the report. R v Robinson (unreported, Hidden J, 15 October 1998) This offender was sentenced to penal servitude for a minimum term of 15 years and an additional term of 5 years in consequence of his shooting - described by Hidden J as a spontaneous reaction - to some resistance by a store owner during the course of a premeditated robbery in company with others of a computer store. Taken into account were also charges of an armed assault on the victim and nine armed robberies of a staff member and customers which occurred at the same time and an additional aggravated armed robbery about 1 week earlier.

The offender was 19 at the time of the offence, had no significant criminal history and would seem to have been led into the venture by a gambling habit. He had pleaded guilty but only after unsuccessfully challenging the admissibility of confessional evidence. A deal of the sentence would be served on protection. R v Sleiman (unreported, Sperling J, 27 August 1999) This offender who had pleaded not guilty was sentenced to penal servitude for a minimum term of 16 years and an additional term of 5 years and 4 months for murder, an offence of malicious wounding being also taken into account. Sperling J said that the murder alone merited a sentence of terms of 15 and 5 years. The offender had lunged at the victim with whom he had had some disagreement earlier, stabbing him twice in the chest. However Sperling J said that he was unable to ascribe a motive to the event. His Honour sentenced on the basis that the Offender's actions were impulsive and that his intention was to cause grievous bodily harm.

The malicious wounding was occasioned when the Prisoner discharged an air rifle from his home at a postman. Sperling J said that this offence considered in isolation, merited minimum and additional terms of 2½ years and 10 months respectively.

The offender was 19 at the time of the main offence and Sperling J noted that this called for some element of leniency. The offender felt no remorse and had a significant record over the preceding 3 years. His Honour recorded that protection of the community from a man he assessed as very dangerous was an important consideration.

R v VRK (unreported, CCA, 27 May 1996) Allowing an appeal from a re-determination under Section 13A of the Sentencing Act, this Court imposed a sentence consisting of a minimum term of 14 years and an additional term of 6 years. At age 21 he had "appallingly beaten" a 2 year old child of his de facto wife in circumstances of anger and loss of temper. The offender had some criminal history which did not loom large and the matter was dealt with on the basis of an intent to inflict grievous bodily harm rather than an intent to kill. He had pleaded "not guilty". R v Webster (unreported, CCA, 15 July 1991) This Court refused to interfere with a sentence of a minimum and additional terms of 14 and 6 years imposed by Wood J. When a young girl the offender was trying to rape had resisted him, he lost his temper and crushed her head with a rock. Asked why, he had said "I didn't want to get in trouble. Can you believe that. I thought she would squeal on me for trying to rape her." It was accepted that the disinhibiting effect of alcohol and drugs had played a part but this Court said that the crime was not impulsive but "the culmination of an increasing surrender to self gratification and an increasing abandonment of any consideration for (the victim's) welfare, and, finally, for her life."

The offender was 18 at the time of the offence, he was remorseful, had pleaded guilty and was regarded as having favourable prospects of rehabilitation. This Court said that "in the case of a young offender with good prospects of rehabilitation, the element of rehabilitation will weigh heavily with a relative decreasing of the effective weight of the element of the need to deter others."

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