R v Michael KUTSCHERA

R v Michael KUTSCHERA - [2008] NSWSC 1271 - NSWSC 2008 case summary — Zoe

[11]

6 On 25 August 2008 the Crown presented an indictment jointly charging this offender and Adam Newbold with the deceased's murder. Both men entered pleas of not guilty. This offender then applied for a separate trial on the basis that were he to be tried jointly with Mr Newbold, highly prejudicial and inadmissible evidence would be introduced and that an unfair trial would result. That evidence consisted of a lengthy record of interview in which Mr Newbold nominated the offender as the driver of the Nissan Patrol and recounted, in detail, the events that culminated in the deceased's death. He gave a graphic account of seeing the deceased killed and what the offender said both at the time that he drove over the deceased and afterwards. I directed that the two men be tried separately and, since it was the Crown's intention to try this offender first, I directed that there be no publication of the pre-trial proceedings or their outcome. 7 On 9 September 2008 Mr Newbold was re-arraigned before me and entered a plea of not guilty to murder and not guilty to a charge of affray laid pursuant to s 93C(1) of the Crimes Act 1900. He entered pleas of guilty to failing without reasonable excuse to provide information to police to secure the apprehension and prosecution of this offender in relation to the death of the deceased contrary to s 316(1) of the Crimes Act, and an assault occasioning actual bodily harm of the deceased contrary to s 59(1) of the Crimes Act. The Crown accepted his pleas of guilty in full discharge of the indictment. In passing sentence in accordance with the provisions of s 10 and s 10A of the Crimes (Sentencing Procedure) Act 1999, I took into account the fact that Mr Newbold agreed to give evidence against this offender at his trial, consistent with his account to police on his arrest. The facts 8 On the evening of 20 July 2007 the deceased met with a number of his friends at the Railway Hotel in Muswellbrook to celebrate the 18th birthday of a young woman. The deceased arrived with Tony Matthews. The offender and Mr Newbold also went to the Railway Hotel that night. They had known one another in a work-related capacity over the previous twelve months but did not share anything other than a casual friendship. This evening was the first occasion that they had socialised together. Although the offender, Mr Newbold, and the deceased and his party of friends were together in the hotel over an extended number of hours they did not intermingle as a group.

[27]

27 Between the time when the offender drove back to the scene in the Nissan Patrol a second time, and when he walked into the scene with Mr Newbold, Tony Matthews had called 000. The police and ambulance were in attendance as the offender and Mr Newbold walked into the area. Tony Matthews had apparently already nominated Mr Newbold, by name, as a person of interest and he was arrested. The offender walked away and went home. He was arrested later that morning after Mr Newbold was interviewed. Relevant principles 28 In sentencing the offender for murder it is necessary for me to have regard to s 19A of the Crimes Act and s 21 and s 61 of the Crimes (Sentencing Procedure) Act ("the Sentencing Act"). 29 Section 19A of the Crimes Act provides: "(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)." 30 Section 21 of the Sentencing Act provides: "(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. (2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term." 31 Section 61 of that Act provides: "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 32 The Crown did not submit that a sentence of life imprisonment should be imposed in this case conceding (appropriately in my view) that the offence did not fall within the worst category of case of murder for which the maximum penalty is prescribed (see Knight v R [2006] NSWCCA 292; 164 A Crim R 126). 33 The offence of murder is however an offence to which a standard non-parole period of 20 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Sentencing Act. 34 As interpreted by the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; 60 NSWLR 168, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of its type after trial. In Way the Court also held that the assessment of objective seriousness is to be made by reference to the circumstances in which the offence was committed and not the circumstances of the offender, other than those causally connected to the commission of the offence. In Apps v R [2006] NSWCCA 290 at [50] Simpson J quoted the following extract from Way's case to make clear the distinction:

[29]

35 On the offender's behalf it was conceded that of the three alternate states of mind that constitute the offence of murder, an intention to kill is a consideration tending to greater objective seriousness. It was then submitted that even were I to find that the offender intended to kill the deceased I should nevertheless be satisfied that the offence was less than mid range because I could not be satisfied that the killing was premeditated. The case of R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267 was cited in support of that proposition. In that case Smart AJ was satisfied that the primary sentencing judge had erred in holding that the murder for which the appellant was sentenced was substantially above the mid range in objective seriousness. The deceased was killed when four men entered a billiard hall in Cabramatta armed with pistols and a samurai sword. The first man pointed at or in the direction of one of the patrons and then fired the pistol at close range. Another of the patrons was shot fatally in the chest and another wounded in the upper body. The primary judge was satisfied that the actions of the gunman left no room for doubt that his intention was to kill and that his actions were premeditated, irrespective of who was the intended victim. Although Smart JA was of the view that an intention to kill and premeditation are usual elements in a murder of mid range objective seriousness, and that there was nothing in the surrounding circumstances of that case that placed the offending above the mid range despite the grave nature of the killing, I do not understand his Honour to have intended to specify an intention to kill and premeditation as requisite elements of mid range offending generally. Is the offence within the mid range? 36 Despite the fact that I am satisfied that the offender only formed the intention to kill the deceased when he decided to manoeuvre the car at and over the upper body of the deceased, the fact that he used the vehicle at that time with deliberation and determination, coupled with the fact that he must be taken to have known that the deceased was vulnerable and unable to defend himself, is sufficient, in my view, to characterise the offending as within the mid range. I am conscious in so finding that I am required to hypothesise as to what an abstract offence in the middle of the range of objective seriousness for an offence of this kind would be. Although I am satisfied that there was no premeditation or planning involved, and that the probabilities favour a finding that the offender's decision to drive over the deceased was impulsive and reactive to the circumstances in which he came upon the deceased and Mr Newbold, I am satisfied that this offence nevertheless falls within the mid range. His conduct and behaviour after the deceased was killed confirm my view that having formed the intention to kill he did so with a cold and calculated detachment and not as a result of loss of self control. 37 Furthermore, I am not satisfied that there is anything personal to this offender that would, in any relevant sense, reduce the offending to less than mid range. In particular, to the extent that the offender ran and got his car in a state of fury because he had been attacked by Tony Matthews (which in the absence of any evidence from the offender I can only surmise as a possibility) I am not satisfied that this is connected in any causal sense to killing the deceased. Furthermore, in the absence of any evidence from the offender it would be a matter of mere speculation on my part that he may have thought the man on the ground was Tony Matthews. Of course, were this the case, it does nothing at all to change the objective seriousness of the offence. 38 As this Court has emphasised on many occasions the use of a vehicle as a weapon is an offence of the gravest kind.

[30]

39 In that connection, the following observation of Street CJ in Murnin v R (Court of Criminal Appeal, 16 August 1985, unreported) remains pertinent: "A motor vehicle is a potentially dangerous - indeed lethal - machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The Legislature has always placed a premium upon human life and the taking of a human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness." 40 These observations have been reaffirmed in this Court many times. As Sully J observed in R v Hall [2001] NSWCCA 202 at [66]: "When…the crime to be punished is not the crime of dangerous driving causing death, but the crime of murder where the murder weapon is a motor vehicle, then the foregoing statements of principle are strengthened even further, and must be applied accordingly by a primary sentencing Judge." 41 His Honour also observed that the use of a motor vehicle as a weapon is all too frequently committed by young offenders with previously good character, and, accordingly, that general deterrence is a paramount consideration in framing an appropriate sentence. 42 Since I am satisfied that the offence is within the mid range of offending of its type, I am required by s 54B(2) of the Sentencing Act to impose the standard non-parole period of 20 years unless I am satisfied, by reference to s 21A of the Sentencing Act, that there are reasons for departing from it. Are there reasons for departing from the imposition of the standard non-parole period? 43 It was submitted on the offender's behalf that various mitigating features, in combination, justified a departure from the standard non-parole period. It is said that he has good prospects of rehabilitation given his age, that he was of prior good character and that the nature of the offence and the circumstances in which it was committed make it unlikely that he will reoffend. I am not satisfied on the evidence before me that these matters, either individually or in combination, operate to mitigate the objective seriousness of the offending. 44 The material tendered on the offender's behalf consisted of a report from Dr Andrew Walker, a senior staff specialist in forensic psychiatry with the Hunter Mental Health Service, a Probation and Parole Service pre-sentence report and testimonials from the offender's friends and family.

[38]

55 I have been referred to a number of decisions where sentences of varying lengths have been imposed on offenders who have used a vehicle as a weapon where a death was occasioned. While there is some similarity in the objective circumstances, in each case the sentence was passed prior to the introduction of Div 1A of Part 4 of the Sentencing Act providing for the imposition of the standard non-parole period of 20 years for the offence of murder. In the case of R v Hall [2001] NSCWCCA 202 the Court of Criminal Appeal confirmed a sentence of 19 years and 6 months, with a non-parole period of 14 years and 6 months, in circumstances where, following a violent exchange with some people in the vicinity of an inner city hotel, the offender drove away before returning and intentionally driving at two people, knocking them to the ground and seriously injuring them. He then drove off a second time and returned striking several other people and killing one of them. The Court was satisfied that the offender drove with a deliberate and cold-blooded determination to exact revenge upon those who had, in his perception, grievously offended him. Despite the fact that the offender was only 22 years of age and that he was seriously intoxicated, angry and in all likelihood humiliated by having been beaten in a fight which he had himself in large part instigated, overall the offender's behaviour was described as a dreadful criminal enterprise and the sentence imposed was not regarded as excessive. 56 In R v Holton [2004] NSWCCA 214, a sentence of 16 years with a non-parole period of 12 years was imposed when the offender, after being involved in a police chase driving a stolen motor vehicle, deliberately ran at and over a police officer who was attempting to stop the vehicle by use of spikes on a roadway. In that case the element of reckless indifference to human life was relied upon at trial by the Crown as justifying the charge of murder. The Crown's appeal against the leniency of the sentence was dismissed with the Court observing that whilst the sentence was lenient it was not so low as to warrant the Court's intervention. That offender was 25 years of age with a minor criminal record. 57 As I have emphasised, in neither case was the sentencing judge constrained by the fact that the offence was subject to a standard non-parole period. Accordingly, and despite the similarities in the cases to which I have been referred, similarities which in other circumstances might be productive of a sentence of similar length, this offender must be sentenced strictly in accordance with the relevant provisions of the Sentencing Act. I am not persuaded that there are factors that mitigate the offending and, accordingly, the standard non-parole period of 20 years will be imposed.

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