Statutory Provisions and Sentencing Principles
38 The principal statutory provisions to which I must have regard are the following. Section 97(2) of the Crimes Act provides the maximum sentence for assault with intent to rob, whilst armed with a dangerous weapon is imprisonment for 25 years. Section19A of the Act provides that the maximum sentence for murder is imprisonment for life. Section 33 of the Crimes Act provides that the maximum penalty for shooting at someone with intent to do grievous bodily harm is 25 years imprisonment.
39 Section 21 of the Crimes (Sentencing Procedure) Act provides that the Court may impose a lesser sentence than that prescribed, and in the case of all offences, general principle lays down that the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed - Ibbs v R (1987) 163 CLR 447; Veen v R (No. 2) (1988) 164 CLR 465 at 478. I must therefore address where, on the imprecise scale of criminality of offences falling within each category, the Prisoner's offences lie. To the lay person this may seem strange, particularly in the case of murder where, by definition, the offence has resulted in a death but experience over many years has demonstrated to the courts and to Parliament that there are other matters to be also taken into account.
40 Section s3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a Court may impose a sentence. No counsel suggested that this was an appropriate occasion to compare what is there set out with what has been said by judges over the years on the topic but clearly the purposes referred to in R v Veen (No 2) v R (1987-1988) 164 CLR 465 and Alexander (1994) 78 A Crim R 141 are encompassed by the section.
41 Sections 54A et seq. of the Crimes (Sentencing Procedure) Act provide, subject to the qualifications in those sections, a standard non-parole period of 20 years for the offence of murder in the circumstances here and of 7 years for the offence of shooting with intent to do grievous bodily harm. There is no standard non-parole period for the Prisoner's first offence.
42 Section 21A of the Crimes (Sentencing Procedure) Act provides that, subject to some qualifications contained in the section, in determining an appropriate sentence the Court is to take into account, in addition to any other objective or subjective factor that affects the relative seriousness of an offence, such of two defined lists of matters, referred to as aggravating and mitigating, as are relevant. In light of the qualifications, and the inherent elements of the offences here, the only aggravating features which I regard as of possible significance here are:-
(a) The first offence was committed in company;
(b) The injury, emotional harm, loss or damage caused by the offence was substantial;
(c) The first offence involved a series of criminal acts; and
(d) All offences were part of a planned or organised criminal activity (although it was only the first offence that was itself planned).
43 In the circumstances, I regard the first of these matters as relevant to only the first offence but it certainly aggravates that offence. I should say something more about the second matter.
44 There was physical injury in the lodging of a pellet in Mr Horin's shoulder. However at the time of trial it had not been removed and this leads me to the view that it has not caused him significant discomfort. However if he has an operation to remove the pellet, the operation and its consequences may well do so. Of possibly more significance is the topic of emotional harm. The Crown submitted that in the case of Mr Horin this was substantial by reason of him being confronted with a firearm and knowing that as a consequence of defending himself, a person lost her life and he had to flee for his own.
45 In this regard I should make 4 points. Firstly, while I would record that Mr Horin was, by far, the most nervous witness I have ever come across, the evidence does not permit me to say to what extent this was the result of the Prisoner's behaviour as distinct from Mr Horin's prior nature. The second are the terms of Mr Horin's Victim Impact Statement. While unusual, they are if I may say so, a credit to him.
"I find this opportunity correct at least from the point of view that alas, I can say, to the court that the real shock to me is not my mental and/or physical disability, no, my real problem and fear is what shall happen to the child of this marriage.
This matter sadly will always haunt me. Therefore whether or no, (sic) this young man shall be able to redeem himself and hopefully in doing so may in some way, Your Honour bring a positive outcome to this tragic matter and therefore hopefully become a positive influence in this child's life.
The above matter shall always be a burden to my soul although it will be less if this child is saved."
46 The third is that in accordance with R v Previtera (1997) 94 A Crim R 76 there are difficulties in placing weight on the impact of the deceased's death and fourthly, it is difficult, if not impossible to determine what was the impact on Mr Horin of one offence rather than another. In these circumstances, it seems to me that I cannot find that the impact on Mr Horin of the offences other than murder were substantial. There was undoubtedly some.
47 Lest it be thought that I have forgotten the matter, I should record that the death of Tracey Oliver is not an aggravating factor within s21A, because, while obviously very relevant, is an element of the offence of murder.
48 The Prisoner's previous convictions are such that I do not regard them as aggravating factors in this case. (Of course, even if I held another view, s21A(4) and numerous authorities would limit the way those previous convictions could be used.) Nor do I regard the offences as ones committed without regard for public safety. I do not understand the paragraph of s21(2) referring to this topic as directed to the situation of victims generally even though those victims may be subjected to danger.
49 The only mitigating factors I regard as of significance are:-
(d) The Prisoner does not have a record of previous convictions that I regard as significant;
(f) The Prisoner is unlikely to re-offend;
(g) The Prisoner had good prospects of rehabilitation;
(h) The Prisoner has shown remorse; and
(i) There was some degree of pre-trial disclosure in the Statement of Agreed Facts.
50 Having regard to the Prisoner's previous convictions, and the distinct possibility that he might have been an amphetamine user, I am not persuaded that he was of good character. I take that view notwithstanding a number of references adduced on the Prisoner's behalf speak of him in complimentary terms. While I accept that he has some good qualities, factors which contribute to my view that he has good prospects of rehabilitation and is unlikely to re-offend, I do not regard him as of good character.
51 I should say something more on the topic of remorse. I am satisfied that he is genuinely remorseful and, as I have said, that this was a major inspiration for what he said in his third and fourth interviews with police. I acknowledge that his plea of not guilty and his evidence argues to the contrary but it does not persuade me that the conclusion should be other than that at which I have arrived. I have no doubt that a major inspiration for the remorse lies in the fact that the victim was the woman with whom the Prisoner wanted to have a domestic relationship and the mother of his daughter - a fact that tends to strengthen rather than diminish his contrition.
52 The Prisoner is also entitled to some credit for the Statement of Agreed Facts which was tendered during the course of the trial. Although a deal of the information contained therein was also to be found in the record of one or other of the Prisoner's interviews, I accept that the Statement did assist and shorten to some extent the running of the trial.
53 Before I return specifically to the Prisoner's offences, I should say more about the purposes of sentencing, particularly as applicable to this case. A good guide is provided by the remarks of Hunt CJ at CL in Alexander to which I have referred. At p142, his Honour said:-.
"Except in well defined circumstances such as youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in prevent the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that just has been done."
54 The special dangers that weapons cause in the community have led, not only to legislation designed to minimise their possession but to the courts emphasising the need for strongly deterrent sentences on those who use them illegally. The nature of the offences adds weight to the importance of general deterrence in this case. No one sitting where I do can but be conscious of the frequency with which guns and other weapons are carried, used offensively in the course of robberies, and do substantial damage. And the entering into robberies, the carrying and the use of the weapons are nearly all conscious deliberate acts to be, and capable of being, discouraged.
55 Before I leave this part of my reasons I should acknowledge that the Crown tendered and I have read victim impact statements of Jean Oliver, Tracey Oliver's mother and 2 of Tracey's sisters, Michelle and Kristy Oliver. Such statements bring home with clarity the sad, and sometimes devastating, consequences of murder.
Conclusions
56 In what I may say were very helpful submissions, the Crown drew attention to the guideline judgment in R v Henry (1999) 46 NSWLR 346 where the Court of Criminal Appeal indicated as a guide that in the circumstances there set out an armed robbery could be expected to attract a sentence within the range of 4 to 5 years. The Crown submitted that the case here was worse because the Prisoner had not pleaded guilty and is thus not entitled to the discount such a plea generally attracts and which was an element in the Court's selection of 4 to 5 years in R v Henry.
57 That proposition is obviously correct although there are other differences also. Included is the fact that, although placed in a vulnerable position once lured into the car park, Mr Horin was not in the position of vulnerability of which R v Henry speaks. A second is that I would not regard the Prisoner, aged almost 27 at the time of the offence as a "young offender" within that case. A third is that the offence was committed in company. A fourth is that the weapon here, a loaded sawn-off shotgun, is to my mind significantly more dangerous than a knife or the like contemplated in that case. When regard is had to that matter, and despite the other differences, I regard the Prisoner's offence as significantly worse that that considered in R v Henry and him as not entitled to the discount that was reflected in the guideline sentence. The offence considered in R v Henry was also under Section 97(1) of the Crimes Act rather than Section 97(2) as the offence with which the Prisoner was charged and which carries a higher penalty.
58 On the other hand, one of the factors that led to the particular guideline in R v Henry was the danger caused by the presence of a weapon of the nature contemplated. Where that danger has in fact culminated in injury the subject of a separate charge, it would be wrong not to recognise that fact by making the sentences reflecting the creation of the danger and its culmination to some degree concurrent. Otherwise there will be an element of double punishment. This consideration is in addition to any concurrency that may arise from considerations of totality. (I may perhaps add that the Crown did not dissent from the substance of the point made in this paragraph.)
59 The Crown also drew attention to R v Mills (unreported, CCA, 3 April 1995) where the relative seriousness of felony murder, as the Prisoner's offence was, and murder where there has been an intention to kill was considered. That case establishes that there is no prima facie presumption that in a comparison of the inherent nature of such offences, felony murder is less heinous.
60 Because the offence of murder is one to which a standard non-parole period applies, I should address specifically the question of whether the Prisoner's offence is in the middle range of objective seriousness, below or above that range. Factors that I regard as particularly significant in this connection are the fact that the original felony that created the risk was planned and the weapon used was one calculated to do much damage if it went off. Such danger must have been obvious, whatever the subjective assessment of it being discharged may have been. The offence was committed in company but in the circumstances, I do not regard this as increasing in any material respect its objective criminality. But for one matter, I would have regarded the offence as falling in the middle of the range.
61 As it is I regard the offence as falling just below the middle of the range. The one factor that leads me to this view is that the person killed was a co-offender with the Prisoner and someone who willingly undertook the risks that the night's activities carried. I do not mean by taking this approach to suggest that the Prisoner's offence was other than extremely serious. However in numerous cases of murder including felony murder, the courts have placed emphasis on the fact that an innocent person, not responsible in any way for events, has lost their life. If that emphasis is not just empty air - and I do not so regard it - then the absence of that factor means the particular offence is not as objectively serious as when the factor is present.
62 I regard the third offence, maliciously inflicting grievous bodily harm with intent to do so as also falling below the middle of the range for offences of its type. Although the nature of the weapon and the Prisoner's actions argue strongly for that offence being above the mid-range, the limited extent of the injury and harm to Mr Horin, and the shortness of the Prisoner's additional criminality argues in the opposite direction and, in my view, even more strongly.
63 I do not intend to impose the standard non-parole periods for the second and third offences. Section 54B of the Crimes (Sentencing Procedure) Act provides that the reasons for taking that approach are only those referred to in Section 21A. I have already adverted to the concluding paragraph of Section 21A(1). There are of course the earlier paragraphs of that subsection also.
64 Section 54B(4) stipulates that the court must make a record of its reasons in this regard and record "each factor that it takes into account". Save and except for saying expressly that I take into account the purposes in Section 3A of the Crimes (Sentencing Procedure) Act, I believe I have done so.
65 I should record that I was asked to find special circumstances in consequence of the "self punishment" which the Prisoner has undergone, the fact that this is his first time in custody, that he will serve at least part of his sentence in protection and fourthly, because of accumulation of sentences. I do not regard the first of these matters as justifying such a finding. Nor do I so regard the third which, if it is to be taken into account, should in my view be reflected in the non-parole period(s). The second of the matters is commonly regarded as a "special circumstance" but because the non-parole period(s) I intend to impose on the Prisoner are the minimum which I believe he should serve in custody and the balance of term will be sufficient to enable him to re-adjust into the community, if ever that is to occur, I do not regard the fact that this is his first time in custody as, in the circumstances of this case, a reason for finding special circumstances or for increasing the balance of term at the expense of the non-parole period. I do regard the accumulation of sentence as a reason for finding special circumstances although I think it necessary or appropriate to reflect that finding only in the sentence for murder..
66 I should record also 2 further matters. Firstly, the Prisoner has been in custody in respect of the subject matters from 28 April 2004. Secondly, before ultimately deciding on the sentences to be imposed, I have reflected on each, the component parts of each, and the totality of the sentence to be imposed.
67 For the offence of assault with intent to rob whilst armed with a dangerous weapon I sentence you to imprisonment for a non-parole period of 7 years commencing on 28 April 2004 together with a balance of term of 2 years and 4 months commencing on 28 April 2011.
68 For the offence of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm I sentence you to imprisonment for a non-parole period of 4 years commencing on 28 April 2005 together with a balance of term of 1 year and 4 months commencing on 28 April 2009.
69 For the offence of murder I sentence you to imprisonment for a non-parole period of 16 years commencing on 28 April 2005 together with a balance of term of 5 years and 4 months commencing on 28 April 2021.
70 I record that the earliest date upon which it appears to me you will become eligible for parole is 28 April 2021.