R v Wood

Supreme Court of NSW|2012-02-03|Before: Hall J

REMARKS ON SENTENCE

The offender was charged on indictment that on or about 14 February 2009, at Ambarvale, in the state of New South Wales, he did murder RT.
The offender was committed for trial in this Court on 20 October 2010 by the Campbelltown Local Court on one count of murder contrary to the provisions of s.18 of the Crimes Act 1900.
The co-accused, LA, was also committed for trial in this Court for the offence of murder.
On 4 March 2011 both the offender and the co-accused, LA, entered pleas of not guilty and the matter was set down for trial on 5 September 2011.
On 3 June 2011 the proceedings were re-listed as the offender, WOOD, indicated that he wished to reverse his plea. He was re-arraigned and pleaded guilty to one count of murder.
The trial listed to commence on 5 September 2011, was vacated and the offender then came before this Court on 3 February 2012.
The offender has been in custody from the date of his arrest, namely 3 February 2010.
Both co-accused, LA and CW are listed for trial on 6 March 2012.

Evidence

The following reports were tendered on behalf of the Offender: Exhibit 1 - Report of Dr Olav Nielssen Forensic Psychiatrist dated 14 June 2011. Exhibit 2 - Report of Anna Robilliard, Psychologist, dated 15 August 2011. Exhibit 3 - Letter from Julia Grix, Solicitor Legal Aid, dated 18 October 2010. Exhibit 4 - Copy of facsimile from Mr Tony Mannweiler, Acting Operations Manager, Parklea Correctional Centre dated 16 November 2011. Exhibit 5 - Statement of the Offender's parents Mr and Mrs Wood dated 21 June 2011. Exhibit 6 - Letter from TJ & RF Fordham Pty Ltd dated 10 June 2011.
The Offender was additionally called to give oral evidence. That evidence will be referred to shortly.
It is not necessary here to set out the matters dealt with in Exhibits 4, 5 and 6 to which I have earlier referred but I have read each of those documents and given consideration to their contents.

The basis of the plea to the offence of murder

Both written and oral submissions were made on the Offender's behalf by Ms Loukas of Counsel who appeared for him at the sentence hearing.
In the written submissions it was stated that the basis of the plea of guilty to murder was extended joint criminal enterprise at [5]. It was contended that whilst serious harm was contemplated as a possibility in carrying out the joint criminal enterprise, there had been no intention in the offender to kill nor an intention in him to inflict grievous bodily harm on the victim.
It was submitted, that in accordance with the Agreed Facts on Sentence, the Offender's criminality was significantly less than the perpetrator.

Submissions as to the basis for the plea

As observed in the submissions for the offender extended joint criminal enterprise involves foresight that the principal of the enterprise might form the requisite intent to inflict really serious bodily injury. At the hearing on 3 February 2012 the Crown confirmed that it accepted that the appropriate basis upon which the offender should be sentenced was that of extended joint criminal enterprise.
In the course of submissions on that date, I raised the question as to whether or not that was the appropriate basis for sentencing in this case.
Ms Loukas applied to re-open the case for the offender and to have him further examined. Leave to do so was granted. In evidence he said that when he saw the silencer being placed on the gun he considered "... that would be a good scare tactic" ...: T [18]
Similarly in relation to the fact that the gun was loaded with ammunition the offender stated he looked at the loaded weapon and said "that will do, that should scare him enough to hand everything over": T [18] He said that he honestly did not think that anyone was going to get shot: "scared," maybe shoot the TV ... . but I didn't expect anyone to get shot at that time. I wasn't even thinking about that that could happen": T [18]
The sentence hearing was adjourned. Further written submissions were provided both by the Crown and the offender on the proper basis for the plea.
In examining the issue, I have been assisted by the detailed analysis in their further submissions for the parties. I have concluded that it is appropriate that the offender be sentenced upon the basis of extended joint criminal enterprise. That concept proceeds on the basis that one party, in this case the offender, foresees or it was within contemplation that these existed the possibility as to the infliction of serious injury but does not agree to a crime other than that which is planned in this case aggravated robbery and continues to participate in the enterprise. I accept that the Agreed Statement of Facts and the histories provided by the offender to Dr Nielssen and Ms Robilliard support the proposition that the infliction of really serious bodily injury upon the deceased was outside of the scope of the understanding, arrangement or plan. The agreed facts and evidence does not, in other words, permit it to be found in this sentence hearing beyond reasonable doubt that the plan was to inflict grievous bodily harm upon the deceased.
The Agreed Statement of Facts in other words provide a basis only for a finding as to the existence of a possibility that the weapon might be used to injure.
The significance of the conclusion that a joint criminal enterprise is an appropriate basis upon which the offender should be sentenced is a fundamental matter in the determination of the objective seriousness of the offence committed by the offender. There is an evident difference in terms of criminal or moral culpability between an agreement or plan to inflict grievous bodily harm on someone as distinct from a plan, an arrangement, or understanding to coerce or scare a person into paying a debt but in relation to which it was within the offender's contemplation as a possibility that the loaded gun could cause very serious injury. However, that said a moment's reflection indicates that an enterprise as existed in the present case which involved taking a loaded rifle into the deceased's home was one that was potentially fraught with dangerous consequences. In such a situation events may move quickly or dramatically and/or unexpectedly. The enterprise into which the offender entered in other words carried with it the potential for the dangerous and tragic outcome that in fact occurred. The assessment of the offender's moral culpability for the offence must accordingly bring such matters into account. When that assessment is made the offence committed by the offender was clearly one involving serious criminality.

Submissions on culpability of offence

The submissions on behalf of the Offender addressed both the purposes of sentencing as set out in the provisions of s.3A of the Crimes (Sentencing) Procedure Act (which I will refer in these remarks to as "the Sentencing Act") as well as relevant aggravating and mitigating factors in terms of s.21A of that Act.
In relation to the question of aggravating factors under s.21A the submission of the offender was that the factors are either not applicable or are inherent in the offence or alternatively were of limited significance in the offence.
In particular the actual threatened use of a weapon (s.21A(2)(c)) it was submitted does not add significantly to the assessment of the objective seriousness which would otherwise be made in relation to the offence of murder.
The Crown submission was that any aggravating factors in terms of s.21A(2) of the Crimes (Sentencing) Procedure Act, are elements of the offence and the Court should not have additional regard to them.
The Crown also submitted that only mitigating factors are that the offender had pleaded guilty and is giving future assistance to law-enforcement authorities.
I accept the submission made on behalf of the Crown and the offender on the s.21A(2)(3) factors in this case.

The objective seriousness of the offence

Under the Sentencing Act standard non-parole periods have been fixed in respect of a number of offences (s.54A(2)). The Act specifies a 20-year standard non-parole period in the case of murder. In Muldrock v R [2011] HCA 39 the High Court unanimously determined that the decision in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 was wrongly decided (at [25]) a sentence, including the non-parole period, must be determined in the manner described by McHugh J in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51].
The Crown firstly observed that the subject offence was not one to which the provisions of Pt 4 Div 1A of the Crimes (Sentencing) Procedure Act applies. Those provisions relate to the imposition of standard non-parole periods. The basis for that submission was that the offender had not been convicted after a trial but had entered a guilty plea.
The Crown however held and noted that the standard non-parole period nonetheless remains an important reference point and guide to the sentence to be imposed. The submission in this respect was that after a plea of guilty the sentencing judge should consider where the particular offence lies on the scale of objective seriousness even though the standard non-parole period is to be departed from: Tien Hung Vu v R [2006] NSWCCA 188; R v Zegura [2006] NSWCCA 230.
The maximum penalty for the offence operates as an indication of the relative seriousness of that offence. The standard non-parole period is another guidepost.
The objective seriousness of the offence in the present case is to be determined on the basis of the agreed facts. In other words in this case in determining the facts for the purpose of sentencing I am not required to make findings based on an evaluation of competing factual versions of events. I proceed upon that basis supplemented by the offender's evidence on the state of mind issue to which I have already referred.
The adverse objective circumstances are as follows:- (a)Before the offender entered the victim's house on the agreed facts, he had seen, his co-accused, LA carrying a rifle, he knew the rifle was loaded with ammunition and saw his co-offender place a silencer around the barrel of it. (b)On and from that time it is apparent the offender was at least aware of the possibility that a confrontation with the deceased could well occur. (c)A dispute or confrontation with the deceased was fraught with potentially dangerous consequences, including, in particular, the possibility of the gun being discharged. (d)Notwithstanding the offender proceeded to gain entry to the deceased's home whilst he was present, knowing that his co-accused was participating in the joint criminal enterprise whilst armed with a loaded rifle. (e)The offender was involved in the organising, planning and implementation of the plan to recover money from the deceased. (f)The purpose of rationale for the criminal enterprise involved the pursuit of the offender's own self-interest, namely, his pursuit of drug debt.
On the agreed facts, in the joint criminal enterprise whilst armed with a loaded rifle, the offender decided to proceed with the joint criminal enterprise plan and n doing so he must be taken as having a significant level of criminal responsibility for the tragic consequences of his agreement with the co-accused and his participation in the enterprise.
It has, on the other hand, been recognised that a secondary offender to an extended joint criminal enterprise is considered less culpable that the person responsible for the act causing death.
In Markarian v R (supra) McHugh J at [51] observed: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." [emphasis added]
Following the shooting of RT, the offender at some point re-entered the home and took property of the deceased including an amount of money. He subsequently received a share of the cash taken from the home in the amount of $4,500.
In accordance with the provisions of s.22 of the Crimes (Sentencing) Procedure Act the Crown submitted that the discount to an offender for a plea of guilty, given its timing, would be in the range 15-20%.
In accordance with the provisions of s.23 of the Crimes (Sentencing) Procedure Act, the Crown estimated in its submissions that the discount for future assistance by the offender in giving evidence against his co-accused was 30% so that a total discount in the range of 50% for the plea and assistance (which assumes a discount of 20% for the plea), the Crown submitted, was reasonable. The Crown noted that a combined discount that exceeds 50% should only be reserved for exceptional cases: SZ v R (2007) 168 A Crim R 249 at [53].

Psychiatric Assessment

The offender was born on 22 March 1978 and is presently 33 years of age. At the time of the offence he was 30 years old.
Dr Nielssen expressed the opinion that, based upon the account given to him by the Offender, that over a period of years he had a substance abuse disorder. Dr Nielssen noted in the history provided that the offender had given accounts of having had several head injuries in motor vehicles accidents. However, whilst he stated the diagnosis of traumatic brain injury could be considered, there was little clinical evidence of brain injury.
There was no evidence from the history elicited by Dr Nielssen or from the Offender's presentation of any underlying mental illness or condition that might have provided a partial defence to the offence.
He considered he had normal intelligence and was not thought to require specific treatment for any psychiatric disorder. He considered that he was likely to derive some benefit from counselling and participation in education, employment and other rehabilitation programs prior to release.
Dr Nielssen stated that it was difficult to provide any kind of estimate of future dangerousness because of the low incidence of serious violence, and because it is impossible to predict a person's condition and circumstances some years into the future. That said he noted the general risk of most forms of offending declined over time. The main concern with the offender, he said, would be the resumption of substance abuse. Abstinence from substance use would greatly improve his prospects of rehabilitation and further reduce his risk of re-offending.

Psychological assessment

Ms Robilliard interviewed the Offender on two occasions and carried out a number of assessments and tests. She stated that the offender functioned in the average range of ability. She noted that there were anti-social patterns of thinking and behaviour evident throughout the profile derived by her but there was no suggestion of sadistic-aggressive characteristics. The Offender's history evidenced long term substance dependence disorder and an anti-social personality disorder. However, it was noted that he had no known history of physically violent behaviour. Ms Robilliard considered that his risk of re-offending will largely depend on his ability and willingness to address his substance dependence disorder prior to ultimate release from custody.
Ms Loukas submitted that the offender had in particular in his oral evidence, demonstrated genuine remorse and contrition and expressed his deep sorrow in relation to the pain arising from the death of the deceased. I accept that he has shown both remorse and contrition.
In relation to the offender's conditions in custody, according to Exhibit 4, he has been held as a Special M Area Placement Inmate at his own request from 26 October 2010 until at least the date of 16 November 2011. The nature of the custody allows him to mix freely with other prisoners in the same category of protection status. Although Exhibit 4 states his hours of unlock are the same as the mainstream/normal population areas, in oral evidence the offender stated that at the time unlocked that he is out of his cell was in fact about 5½ or 6 hours at the Corrective Services institution where he is presently held. In the area which he is held he has access to general counselling/psychology services and work opportunities are available but are limited.
The offender's evidence was that he has seen a counsellor whilst in custody on a regular basis. He is presently on medication including Effexor, Seroquel and on methadone.
The offender has been in custody since the date of his arrest on 3 March 2010.
Ms Loukas submitted that a finding should be made of special circumstances as the offender will require assistance in order to return to the community and do so avoiding drug abuse as noted by both Dr Nielssen and Ms Robilliard.

The appropriate sentence

Ms Loukas provided a schedule of comparable cases and referred in detail to certain of the cases referred to in the schedule. Whilst it was acknowledged that there are no cases strictly comparable with the present nonetheless the cases referred to in schedule and submissions were said to provide a basis for establishing a range appropriate to the present case. In determining where in that range the present case lies emphasis was placed in submissions on the basis of the offender's plea namely extended joint criminal enterprise within a range of 8 to 10 years which it was submitted by Ms Loukas to be an appropriate one. On the basis of the plea it was submitted that the non-parole period would be closer to 8 years. It was contended that in terms of the standard non-parole period the present case is "substantially below mid-range" T [28]
On the question of the offender's plea, it was submitted on his behalf that whilst the Crown had indicated , giving the timing of the plea, that a range of 15-20% (see Crown submission dated 3 February 2012 at [9]) in the circumstances of this case a 20% discount for the plea was an appropriate discount. Whilst it was, acknowledged by Ms Loukas that the plea was not made at the earliest possible stage on the other hand it was said that it was not a late plea.
I am required to determine the discount for the offender's plea in accordance with the guidelines given in R v Thomson [2000] NSWCA 309; 49 NSWLR 383 at [155]-[156]. Having given the matter consideration including in particular the date upon which the plea was offered, I consider that in all the circumstances that a discount of 15% for the plea should be allowed.
The Crown was informed in May 2011 that is approximately 1 year 3 months following his arrest that the offender would enter a plea of guilty to murder on the basis of extended joint criminal enterprise. I have taken into account the matters relied upon in the submissions for the offender including the additional written submissions dated 20 February 2012 at [34]. I accept that the plea had utilitarian value which is to be considered in light of the timing of the plea to the charge.
In relation to assistance, Ms Loukas relied upon the evidence given by Detective Senior Constable Perry who, at the sentence hearing on 3 February 2012 accepted that the evidence to be given by the offender is evidence "of real importance" in the proceedings concerning the co-accused, LA and Mr CW. He accepted that the evidence to be given was, in his opinion, highly significant in relation to the trial.
It is necessary that I evaluate the extent and value of the offender's assistance to the authorities. The provisions of s.23 of the Sentencing Act guide the court in terms of evaluating the discount to be applied where an offender has assisted, or undertaken to assist, law enforcement authorities with respect to any offence. The court is required to take into account the effect of the offence committed by the offender on the victim and the family of the victim, the significance and the usefulness of the offender's assistance to which I have referred, taking into consideration in that respect the evaluation by the authorities themselves of the assistance that has been rendered or offered together with matters such as the truthfulness, the comprehensiveness and the reliability of the information that has been provided by the offender and, additionally, the nature and extent of the offender's assistance or promised assistance, or the undertaking to assist and any benefit that the offender has gained or may gained by reason of the assistance, whether the offender will suffer harsher custodial conditions as a result of assistance and whether the assistance or the promised assistance is related to the offence for which the offender stands to be sentenced or to an unrelated offence.
One constraint in determining an appropriate discount on sentence or in the reduction of sentence to be imposed that is otherwise appropriate to reflect the criminality of the offender, namely, the constraint that the ultimate penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.
In SZ v R [2007] NSWCCA 19 Howie J observed There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected the sentence will fail to carry out the purposes of punishment. That bottom line is reflect in relation to a discount for assistance to the authorities by s.23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out therein the Act because it is in relation to the application of discounts for assistance that the often conflicting purpose and policies of sentencing a particular offender come brightly into focus But the notion of the irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment...
It has been stated on many occasions, in particular by the Court of Criminal Appeal, that the combined discount for pleas of guilty and assistance should not normally exceed 50%, unless the matter can be described as truly exceptional. It is common ground in this case that the offender's assistance does not fall within that category.
It is clear that assistance cannot be classified in the exceptional category but nonetheless it represents valuable assistance to the authorities.
I have considered the issue in terms of both past assistance as well as future assistance which the offender has undertaken to give in particular his undertaking to give evidence in the proceedings against the co-accused.
Exhibit B sets out the nature and extend of the offender's assistance to authorities and I have had due regard to the material therein. Having regard to it and the material bearing upon the personal risk and impact of providing assistance on the offender, including the more onerous condition of his custody I have determined that the offender should receive a discount of 30% for his assistance to authorities of which one-third is attributed to his past assistance and two-thirds to his future assistance.
The resulting combined discount for the offender's plea and assistance I determine to be is 45%.

Determination of the sentence

The starting point in determining an appropriate sentence is the fact that murder involves the felonious taking of a human life. It is a violation of the sanctity of human life which is the foundation of our society. It is the most serious crime in the criminal calendar. That seriousness is reflected in the maximum penalty which has been fixed by Parliament, namely life imprisonment. It is also reflected in the standard non-parole period that the Act refers to a mid-range which has been fixed at 20 years. Other than in extraordinary cases, conviction for murder calls for a substantial sentence of imprisonment. The interests of punishment include denunciation of the conduct of the offender and it also includes the deterrence of the wider community against similar conduct.
It is apparent that all cases of murder are very serious cases but the legislation acknowledges that circumstances giving rise to murder do differ widely and accordingly the objective seriousness may vary from one case to another. At the higher end of the scale are cases where there are what have been termed "cold-blooded murders" which have been committed with premeditation for financial gain by persons who are in full possession of their faculties. At the other end, and in cases where domestic disputes arise over argument and over-reaction leads to disastrous consequences.
In determining sentence I am required to apply the provisions of s.54A and s.54B of the Sentencing Act. The statute prescribes a standard non-parole period for an offence of murder of 20 years imprisonment. However, as the High Court in Muldrock observed the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon a particular offender. The principal of proportionality is the fundamental precept of sentencing and ss.22A(2) and s.23(3) of the Sentencing Act maintains that position: I refer to Veen v R (No. 2) (1988) 164 CLR 465 and Muldrock, footnote 21.
The nature of the offending, not matters personal to the offender are to be taken into account in determining the concept of "objective seriousness": s.54A(2) and Muldrock at [27]. I have earlier identified the facts, matters, and circumstances which I consider are relevant to the nature of the offending in this case. Because I am sentencing upon the basis that the offender did not have an intention to kill or to cause grievous bodily harm, I have determined the nature of the offence committed by him however, was one which, within his contemplation, it involved the possibility or serious harm.
The facts associated with the offence as I have earlier stated, it potentially put the victim at grave risk. The acts associated with the offence, including those leading up to it, were not spontaneous but were part of a deliberate plan.
It is clear that the facts, matters and circumstances to which I have referred indicate that the criminality involved in the subject offence was serious. I asses the objective seriousness as being below the middle of the range but not well below that range: s.54A(2). The relevant statutory provisions require that I take into account of the full range of factors in determining the appropriate sentence for the offence, whilst being mindful of the maximum sentence prescribed and the relevant standard non-parole period.
The reasons for imposing a shorter non-parole period than the standard non-parole period, apart from the effect of the combined discount of 45%, are the factors which I have referred to and have taken into account in evaluating the appropriate sentence.
Generally speaking finding of fact about the degree of an offender's involvement in a joint criminal enterprise have a significant effect on the assessment of an offender's moral culpability. It is necessary where possible of defining both the offender's foresight and the role he/she played.
In the present case I have earlier referred to the fact that the offender entered into what was a truly dangerous enterprise. The possibility of harm being occasioned to the deceased was a real one and yet the offender continued with the enterprise in pursuit of his own self-interest. The consequence of the offence of murder is that a relatively young life has been extinguished and the deceased's family has been robbed of his presence. The learned Deputy Senior Crown Prosecutor stated that the deceased's parents were present at the hearing. He observed that whilst there was no victim impact statement from them, he had spoken to Mrs T and she said words could not describe the way she feels. The Court extends its condolences to the family of the deceased. I am of course mindful that although there is no Victim Impact Statement in this case, the statements made in effect on behalf of Mrs T will be considered consistent of course the principles stated in R v Previtera (1997) 94 A Crim R 76.
I do not consider that the evidence, including in particular the evidence of Dr Nielssen and Ms Robilliard, provides a sufficient basis for a finding of special circumstances. The offender's prospects for rehabilitation are very much dependent upon whether he overcomes the substance abuse problem. He is still a young man with some prospects which it is to be hoped he will turn to his advantage in the future.
In relation to the determination I have earlier expressed, that is to say that the offender should receive a discount of 30 per cent for assistance to authorities, I formally attribute one-third of that discount to past assistance and two-thirds to future assistance. That said, I will now proceed to sentence the offender on the basis that I have stated.
The offender is sentenced to a term of imprisonment comprising a non-parole period of 9 years commencing on 3 February 2010 and to expire on 2 February 2019 together with a parole period of 3 years to expire on 2 February 2022. Accordingly the first date upon which the offender will be eligible for parole will be on 2 February 2019.

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: 12 October 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (10)