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[2011] NSWCCA 138
Court of Criminal Appeal (NSW)
2011-02-01
McClellan CJ, Adams J, Buddin J, Rothman J, Clellan CJ
Original judgment source is linked above.
Judgment 1McCLELLAN CJ at CL : I agree with Buddin J. 2ADAMS J : The applicant seeks leave to appeal against the sentence imposed on 20 August 2009 in this Court for offences of armed robbery and murder committed on 3 September 2001. For the latter offence he was sentenced to a term of 14 years imprisonment commencing 7 February 2008 with a non-parole period of ten years and six months and, for the former, to a concurrent fixed term of five years imprisonment. The applicant had pleaded guilty to both offences. The applicant's commission of the offences was not suspected and only came to light when, on 7 February 2008, he voluntarily handed himself in to police and made a full confession. This unusual factor rendered the sentencing exercise a most difficult one. He seeks leave to appeal only from the sentence imposed for murder. 3The applicant's grounds of appeal are that the learned sentencing judge did not give sufficient weight to the evidence of the applicant's voluntary disclosure of guilt and erred in failing to find special circumstances (warranting adjustment of the ratio between the overall sentence and the parole period). The offences 4Aside from the issue as to the applicant's intention, the basic facts were not in dispute at the sentence hearing and it is not submitted here that the learned sentencing judge's findings were mistaken. The following account is taken from his Honour's reasons for sentence. 5At about 12.45 pm on 3 September 2001 Mr Rashid, a security guard, had collected cash and cheques totalling approximately $55,000 from a club in Punchbowl and had returned to his vehicle when he was approached by the applicant who was armed with a firearm. The applicant told him that he was armed and to get out of the vehicle. It appears that Mr Rashid disputed that the applicant was armed and a struggle ensued, in the course of which the applicant took the weapon from his belt. He pulled Mr Rashid from the vehicle, the latter holding onto his hand or arm. At this point, a number of bullets were fired which were later recovered from the vehicle. The two men wrestled and at one stage it appeared that the applicant had Mr Rashid in a headlock. Mr Rashid was shot twice during the struggle. (The sentencing judge briefly summarised evidence from witnesses to the struggle but it is not presently necessary to refer to this material.) The autopsy revealed that Mr Rashid died from a gunshot wound to the left upper back, which his Honour found was consistent equally with a deliberate shot fired down the body whilst the deceased was in a headlock and with the gun having discharged during the course of a struggle while the deceased was in a similar position. His Honour was not satisfied, however, that the applicant had deliberately done this. The second gunshot wound that, of itself, may not have been fatal, entered the deceased's left lower back and, passing through the muscle, fractured the vertebrae. Again, that wound was consistent both with being deliberately inflicted and as a result of the struggle. There was also evidence of lacerations and bruising consistent with the struggle. 6After shooting the guard, the applicant took the money and escaped in the guard's car which was driven a short distance and abandoned. He then used his own vehicle to go to his mother's house, which was nearby. 7The applicant had worn a wig. None of the witnesses were able to identify him. He had also been wearing gloves and left no fingerprints at the scene and no traceable DNA. Consequently, the law enforcement authorities were unable to identify him as the perpetrator of the armed robbery and murder. The applicant was not a suspect and was not questioned. The applicant surrenders himself 8On 7 February 2008 the applicant, entirely voluntarily, went to the Green Valley Police Station and informed police that he had committed the murder and robbery, saying that he could not live with it any more. The officers, who were unaware of the offences, made enquiries and discovered that, as the applicant had said, a robbery had been committed and the security guard shot. He was arrested immediately and has been in custody since then. 9The sentencing judge found, as was not controversial, that the information concerning the offence came almost entirely from the applicant and that it was "absolutely clear" that but for his confession, he would never have been apprehended.
Evaluation of Objective Seriousness 10As the sentencing judge noted, the standard non-parole period does not apply. 11Dealing with the potentially aggravating features of the offence, the sentencing judge concluded that, although there was some planning involved, it related to the armed robbery and not the murder. This planning comprised the use of a disguise, and obtaining and using a radio scanner to listen to the police radio network before, during and after the robbery. His Honour noted that there was a deal of debate concerning the applicant's state of mind in relation to the shooting of the deceased. The Crown contended that he intended to kill Mr Rashid or, at least, cause him grievous bodily harm, whilst it was contended for the applicant that this was a case of felony murder without any such intention. His Honour was not satisfied that the applicant had the intention of killing the deceased or causing him grievous bodily harm, but noted (with respect, correctly) that this did not necessarily mean that the crime was not a relatively serious one within the category of murder offences. 12In respect of the seriousness of the crime, his Honour said - "16 The relative seriousness of any crime depends on its own facts and does not depend on some general categorisation. While it is difficult to imagine a murder that involves the requisite intention being less serious than the least serious felony murder, this is not in the category of least serious felony murder. Mr Raad intended to commit an armed robbery. He did so with a loaded gun. He had loaded the gun shortly before the robbery and had his finger on the trigger when he pulled the gun out from his belt. 17 Even though I am not satisfied that he intended to kill or cause grievous bodily harm, he must have understood that committing an armed robbery with a loaded gun, having the safety catch off the weapon and having his finger on the trigger could foreseeably result in serious injury, if not death. The seriousness of the offence, including the armed robbery, must be measured against the regime that existed at the time of the commission of the offence, namely, in 2001." 13His Honour added it could not be disputed that the circumstances were not only dangerous to Mr Rashid but also to bystanders and constituted a threat to public safety. 14As I understand it, it is not submitted on the applicant's behalf by Ms Manuell SC in this Court that these findings were not open. 15The sentencing judge noted that the maximum sentence for an aggravated offence under s 97(2) of the Crimes Act 1900 (the aggravating feature being that the applicant was armed with a dangerous weapon) is twenty-five years and that for murder is life imprisonment.
Subjective Features 16It is obvious that the most significant subjective feature here is the unusual way in which the applicant's involvement in the offences came to light. The sentencing judge said in this regard - "21 No account of the history of Mr Raad can adequately describe the transformation that has occurred in him. The person to be sentenced is a very different person to the one who committed the offences. Nevertheless, and taking into account his subjective circumstances, Mr Raad must be sentenced to a term of imprisonment that reflects the seriousness of the offences with which he is charged and to which he has pleaded. His history is a sorry one and unfortunately not an unusual one. 22 He had an early dysfunctional family environment, his parents having separated when he was 7 years' of age. He came to Australia at the age of 10 and did not see his mother again until he was about 18 years' of age. He did not have a good relationship with his stepmother and was not particularly close to his father. This early environment, according to Mr Taylor, Clinical Forensic Psychologist, in his report of 3 April 2009, impacted on his social and emotional development. From about the age of 13 years, he was having significant behavioural problems and ran away from home at the age of 15. He lived on the streets with his friends and as a consequence engaged in substance abuse and criminal behaviour. 23 Mr Raad has a criminal history of some length, which reflects his street life and substance abuse. His first offence was for stealing a motor vehicle, when he was approximately 15 years' of age. Most of the offences with which he has been charged, and for which he has been convicted, have been property offences such as stealing, break, enter and steal, and the like, and drug offences including supply of hemp, possession and supply of heroin and related offences such as goods in custody. Mr Raad continued over a 10-year period with these kinds of offences and received more and more serious punishment. In 1985 he escaped from lawful custody and in 1988 and 1992 committed armed robberies. These were the last offences before the offences for which he now stands to be sentenced. The gap in offending between 1992 and 2001 related to various issues associated with his attempts to cease his drug abuse and with his custody. 24 He had tried, partly successfully, on a number of occasions to cease using drugs, but relapsed shortly before the date of the offence. He has been in his current relationship for approximately 10 years and that relationship has provided some significant stability. His relapse on drugs was the cause of this offence and the armed robbery was committed for the purpose of obtaining money to pay a bill from prior drug purchases. The $55,000 (or as much of it as could be used) was spent on that drug bill and on the purchase of other drugs. 25 The effect of his relationship has been, both literally and figuratively, sobering. His partner's devotion to him and her religion have had an enormous impact on his life. He assists in rearing his stepchildren and has an extremely close relationship with them. He cares deeply for his family and they care for him. This was the subject of oral evidence, and obvious from the reaction of those of his stepchildren who attended during his sentencing hearing. It was that relationship, both with his wife and her children, that brought about his stability and change in attitude. Mr Taylor's report, and the evidence of Mr Raad was that Mr Raad got to the stage of his life when he couldn't handle his crime anymore. Mr Raad, one day, looked at his own stepchildren and realised that the man he had killed had children too and would never see his children grow up. It was this that led to Mr Raad's voluntary admissions. His remorse is profound." 17Summarising the effect of this evidence, his Honour said - "29 Mr Raad not only has prospects of rehabilitation, he has, it seems, wholly rehabilitated himself. He has been clean from alcohol and drugs for a significant period of time and for almost all of the time since the commission of the offence in question. I have no doubt that, subject to the effect of prison itself, Mr Raad would not re-offend. Even in relation to the incarceration and association with other offenders and association with criminal elements in prison, this would be more than matched by the positive effect of his family. Indeed, one of the most troubling features of the sentence is the effect that prison, itself, will have on the rehabilitation of Mr Raad. ...... 31 Mr Raad was not a young offender. At the time of the offences, he had just turned 41 years' of age and he is now about to turn 49. In 1988, when Mr Raad was last before the courts for an armed robbery offence, Judge Herron sentenced Mr Raad to 8 years' imprisonment, with a 5-year non-parole period. As earlier stated, Mr Raad is a very different person from that person who was before Judge Herron; his remorse is profound and his rehabilitation almost complete. I would expect that he would not reoffend." 18Dealing with the applicant's prospects of rehabilitation, his Honour accepted that he had wholly rehabilitated himself and had no doubt that "subject to the effect of prison itself" the applicant would not re-offend. Even this effect, he thought, would be "more than matched by the positive effect of his family", though his Honour observed that "one of the most troubling features of the sentence is the effect that prison itself will have on the rehabilitation" of the applicant.
The Significance of Voluntary Disclosure 19The learned sentencing judge found that, in addition to the maximum discount for his plea of guilty, the applicant was entitled to a significant added element of leniency for his voluntary disclosure of involvement in serious crimes of which the police had no knowledge, citing the well known authority of R v Ellis (1986) 6 NSWLR 603. His Honour also cited the following passage from the judgment of McHugh J in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 - "[12] Thus, according to Ellis , the degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure." The learned sentencing judge added - "20 Nevertheless, however significant the Ellis factors ought to be, the sentence imposed cannot fall below that which is appropriate for the seriousness of the crime. " [Emphasis added.] 20It is important, in my respectful opinion, to bear in mind that (what might conveniently be called) an Ellis situation gives rise to two distinct matters that need to be taken into account. First, it informs the assessment of remorse and contrition and reduces, potentially to insignificance, the requirement for personal deterrence. It seems to me it also reduces the materiality of general deterrence, since it would be directed to that miniscule class of individuals minded to commit crimes and then admit to them. At the same time, the notions of retribution and denunciation are undoubtedly still of considerable importance. But they are only a part of the answer to the question; "What does this particular offender deserve?" and are necessarily affected, whether favourably or adversely to the offender, by the whole of the circumstances including - as is typical of the Ellis cases - the marked change in the character and personal attributes of the person being sentenced as distinct from the way that person was when the crime was committed. This is no more than noting the incommensurable character of the factors forming the instinctive synthesis which is ultimately expressed in the sentence. These considerations may be usefully termed the " Ellis personal features". 21A second very significant factor in Ellis cases is the policy of the law that offenders should be encouraged to come forward, a rather more objective and distinct matter than the personal attributes of the particular offender and his or her motivations. Thus, in Ellis , Street CJ at 604 said - "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing Judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." [Emphasis added.] This passage was cited with approval by McHugh J in Ryan . 22Accordingly, it is necessary to consider whether the sentence which is proposed to be passed would be likely to encourage a guilty person to come forward as distinct, of course, to deter him or her from doing so. This matter may be termed the " Ellis policy feature". With respect, I am unsure whether the significance of this feature is encompassed by the learned sentencing judge's statement of principle quoted above that "the sentence imposed cannot fall below that which is appropriate for the seriousness of the crime", language reflective of conventional considerations applying to sentencing, although including the Ellis factors as justifying a considerable degree of leniency. 23On the face of it, a confession of the kind made by the applicant is well within s23 of the Crimes (Criminal Procedure) Act 1999, sub-s(1) of which reads - "A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence." The "offence concerned" is the particular offence for which the offender is to be sentenced, a point made clear by para 23(2)(i). The application of this provision was not brought to the sentencing judge's attention and his Honour did not refer to it. This may be of little matter since the section appears to state the common law. However, s23(3) makes it clear that the limitation on the extent to which the sentence might be reduced under this head is such that the sentence will "not be unreasonably disproportionate to the nature and circumstances of the offence" (emphasis added). The assumption made by the Parliament is, therefore, that the resulting sentence will be "disproportionate" but requires that it be not "unreasonably" so. 24Clearly the assessment in any particular case whether the disproportion is unreasonable is a matter of judgment upon which reasonable minds may differ. One of the matters that should be borne in mind, as I think, is that, since the expected sentence is lengthened as the seriousness of the crime increases, the graver the crime the greater the inducement to remain silent, so that the discount given to encourage confession must be all the greater in absolute terms. This consideration, of course, is made in the context that, had the offender not come forward and confessed, he or she (in a case such as the present) would not be facing any punishment at all. This is in marked contrast with the case where an offender decides to assist the authorities in respect of the criminal activities of another. He or she is already facing punishment. I do not underestimate the personal risks that some such informants can face. However, someone in the applicant's position was facing sure and substantial punishment as against no punishment at all. 25Even though the offender in this situation is almost invariably motivated by very strong feelings of remorse, the likelihood of a heavy sentence will obviously operate as a considerable, probably decisive deterrent; if he or she is to be encouraged to come forward, it is self-evident that the sentence must be considerably lessened. Perhaps this is to say little more than Street CJ said in Ellis about the need to extend "considerable" leniency in these cases. I simply point out that, to be effective, this leniency might well need to be very considerable indeed. It hardly needs to be added that the mere fact that in any particular case the offender is - at least at the time of confession - indifferent to the length of the sentence that might be meted out is irrelevant. The policy is directed to those offenders who are minded to confess by their feelings of guilt, and might be encouraged to come forward by the considerable leniency they could expect. For the reasons I explain below, I am of the respectful opinion that the leniency extended to the applicant was by a substantial margin less than the principle in Ellis required. Other Ellis cases 26Before moving to a discussion of the way in which the sentencing judge calculated the sentences here, it is useful, as it seems to me, to look at previous cases of murder where Ellis considerations applied. Not surprisingly, they are rare. It is difficult to avoid the suspicion that the rarity is, at least in part, due to an apprehension that a resulting sentence is likely to be severe, even though probably much less severe than the conventional applicable sentence. 27In R v Bawden (unreported, NSWSC 30 October 1992) the offender walked into a police station and confessed to a murder committed 17 years previously for which the victim's husband had been wrongly convicted. It became clear that his confession was genuine and that it was motivated by his feelings of guilt about the killing. The offender had only become aware of the husband's conviction a few days earlier. Although there were some doubts at first about the genuineness of the confession, following an enquiry under s475 of the Crimes Act 1900 the husband was pardoned and the offender was charged and convicted on his plea of guilty. The circumstances of the crime were particularly serious. The applicant, then 22 years of age and under considerable personal stress, forced his way into the victim's home when she answered his knock at the door. She was a stranger. When she started to scream and a struggle started he took a shirt and wrapped it around her neck, tightening it as she continued to struggle. When she stopped struggling he dragged her down the hall into the bedroom, by which time she was probably dead. Although a sexual motive was suspected, the applicant denied this and claimed he had only intended to steal property from the house. Matthews J accepted that this was so. Her Honour found that the offence was "quite out of character" and noted that he had attempted suicide on three or four subsequent occasions. Her Honour thought that these attempts, his transient life style, and difficulties with relationships were a product of his guilt about the killing and accepted that this had preyed on his mind from the beginning. She found that it was his desire to put his life in order and the need to be punished for his crime that motivated him to hand himself into police and make his confession. Although the motivation for the killing was baffling in light of the offender's character, Matthews J found that it was an isolated act of violence and there was no danger of his reoffending. 28Matthews J held that the lapse of time was not a mitigating feature since it arose from his own failure to come forward but commented that "it is impossible to ignore the fact that that the prisoner ...is an entirely different man from the person who [committed the murder] almost twenty years ago. Time and guilt have taken their toll upon him". Her Honour accepted that the confession was telling evidence of remorse. There was no prospect of his guilt being suspected, let alone known. Accordingly, her Honour held that "he is deserving of substantial leniency ... [not only because] his action indicate[s] extreme contrition in a subjective sense but it is part of the policy of the criminal law to encourage guilty people to come forward and disclose their guilt ... [and the] only way that this can be done is by extending leniency to those who do so". 29Commenting that "I need hardly say that this case presents special circumstances which entitle me to vary the proportions [between the minimum and total terms] Matthews J imposed a sentence of fifteen years with a minimum term of eight years. 30In R v MHN [1998] NSWSC 533, the offender killed the deceased, in the course of a "cowardly attack by four persons against [the victim]". His skull was fractured by kicks inflicted by the offender and unconscious or semi-conscious, he was taken to the premises occupied by one of the assailants, and, following an unsuccessful attempt to strangle him, his throat was cut by the offender, who was only 17 years of age at the time. The body was taken away and left on a nearby building site. The offender and his victim had known each other for some time and there was considerable (unexplained) ill-feeling between them. 31In R v McCabe (unreported, NSWCCA 14 October 1991) the offender's sentence following a plea of guilty to murder of twenty years imprisonment with a minimum term of fifteen years was reduced on appeal to sixteen years with a minimum term of nine years. The deceased, an elderly woman, died in her unit following the infliction of seven stab wounds. Although the applicant was interviewed in the course of the police investigation as she had moved into an adjacent unit the day before the killing, her statement that she was absent from the building at the time was accepted by police and she was discounted as a suspect. About two and a half years later the offender, accompanied by a solicitor, walked into a police station and said that she believed she might have been responsible for the killing. The offender told police at first that she had been given entry into the unit and the victim had threatened her with a knife when she was stealing money from a wall unit. She claimed the victim was fatally stabbed in the ensuing struggle. She said that she was "hanging out" for drugs, though not intoxicated and discovered the victim was dead when she read of it in the newspaper a few days later. She had no explanation for the seven stab wounds that were inflicted. In due course, she was committed for trial. Shortly after, the offender made a second statement to police, saying that she was heavily intoxicated on the night in question and had little memory of what happened. She admitted taking the knife to the unit when she had gone there to return the victim's umbrella but had no idea why she had the knife with her. Although she remembered stabbing the victim twice in the neck and throat, she could not recall why. The offender then changed her plea to guilty of murder. She did not give evidence in the sentence proceedings. The sentencing judge's findings that the offender was not significantly intoxicated at the time of the crime but that she was suffering from a mental disorder occasioned by prolonged drug abuse associated with an appallingly sad personal background were accepted on appeal as were his Honour's findings that she had made very significant steps towards rehabilitation. 32Matthews J (with whom Gleeson CJ and Carruthers J agreed) observed that the sentence imposed at first instance was "on any view of the matter... a lengthy term of imprisonment for murder", pointing to the range of sentences for murder that had recently been passed, the highest of which was one of twenty four years with a minimum term of fifteen years for a murder described by her Honour as "a much more serious matter" both objectively and subjectively than the crime under appeal. Her Honour said that other serious cases of murder which did not have "substantial mitigating features" resulted in sentences "roughly similar" to the appellant's, thus it fell "within the upper range of sentences for murder over recent years". Although the objective circumstances were "very serious indeed" her Honour pointed to the appellant's strong subjective case, which included physical and sexual abuse as a child. She was only nineteen years of age at the time of the crime, with a minor criminal history. Matthews J concluded that the sentencing judge had given inadequate weight to the appellant's remorse, which had been somewhat diminished by the conflicting accounts of the offence, but compellingly demonstrated by her having come forward to confess when there was no prospect of being apprehended. Her Honour added - "In my view, the fact that the applicant came forward and confessed to the killing two and a half years after the event should be given considerable weight upon sentence. Not only did it provide graphic evidence of the applicant's remorse in a subjective sense, but there is also a policy consideration involved [citing Ellis ibid at 604, emphasis added]." Her Honour considered that there was "compelling evidence of special circumstances" comprising the appellant's "most difficult and unusual background ... leading to an altered mental state at the time of the killing ... her youth ... the fact that she gave herself up ... and ... the very strong evidence of her rehabilitation ..." thus justifying the minimum term of nine years. I would point out that the fact that all of these factors were relevant also in determining the total sentence did not prevent them from being again considered for the purpose of determining whether they also warranted a variation of the statutory ratio, a matter to which I return. 33In R v Baldacchino [1998] NSWSC 723 the offender murdered one Joseph Farrugia in August 1985. After becoming a Jehovah's Witness in October 1995 and telling his wife and Elders of the congregation in April 1997 of his commission of the crime, he went to the police in May 1997 and made a full confession. The objective circumstances were particularly serious. His then girlfriend had been ordered as part of a property settlement to pay $20,000 to Joseph Farrugia, her ex-husband. The couple unsuccessfully attempted to procure two persons to kill him and then, on her instigation, the offender planned to kill Farrugia himself by using a .22 rifle the barrel of which he shortened and machined to accept a silencer. On the night of the crime, he had been drinking quite heavily and went to the victim's house, entering through a window forced open with a screwdriver, but the victim was not at home. He left and returned about 30 minutes later. Seeing the victim's car in the driveway, he reentered through the window, discovered the victim asleep in bed, put the rifle to his head and shot him. He then disposed of the rifle and other items that may have been contaminated with blood. The offender married his girlfriend the following year but the marriage was short and they separated after a couple of years, divorcing in 1996. In about 1989 he turned to religion and became increasingly troubled in his conscience by Farrugia's murder. The sentencing judge accepted that he had been suffering from severe depression at the time of the killing, which condition had continued to affect him episodically ever since, though improving somewhat with his religious conversion. In addition to his own confession, the offender agreed to assist the authorities in the prosecution of charges against his ex-wife. But for his confession there was no prospect that he would have been identified as the killer. 34The sentencing judge found that the offender's expressions of remorse and contrition were genuine and deeply felt and that, except for the killing of Farrugia, he was not a violent man. 35The sentencing judge categorised the murder as a "cold-blooded assassination" primarily to satisfy his girlfriend's greed, involving the invasion of the victim's home. His Honour accepted that s442B of the Crimes Act 1900 concerning assistance to the authorities (now repealed and replaced by sec 23 of the Crimes (Sentencing Procedure) Act 1999) applied to the case, noting that sub-s (2) prohibited a reduction to the sentence "so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence". The offender was sentenced to a minimum term of eight years with an additional term of eight years. The special circumstances comprised "the possible effect of such a lengthy sentence on the existing and expected rehabilitation, the estrangement from the prisoner's church where there appear to be no other family or friend support mechanisms operating and the likelihood that custodial circumstances would be harsher because of the assistance that the prisoner has rendered to authorities [together with] an extended period of supervision ... in both the prisoner's and the community interest". 36In R v JSK [2004] NSWSC 470 the offender, not being a suspect, handed himself into police almost three years after he murdered the deceased and confessed his guilt. At the date of the crime he was 16 years of age and his victim was 17. About a week earlier, he and MH (just short of 18), who were members of a circle of friends that included the deceased, discussed killing him as he was becoming involved with MH's girlfriend. The three youths drove to an area of bushland in MH's car. MH struck the deceased with a piece of timber picked up from the ground, the offender hit and kicked him until he was unconscious and the two then dropped a large log several times onto his head until they believed he was dead. He was buried in a shallow grave dug with a shovel brought for that purpose. The offender took the deceased's wallet and mobile phone and hid them. 37Buddin J summarised the objective circumstances as follows - "[9] Whilst the offender must be given credit for his obvious candour in disclosing the details of the events that led to the death of the deceased, the fact remains that this was a cowardly and cold-blooded killing perpetrated upon a young man who would have had absolutely no reason to suspect that he was to be murdered by two of his friends. Moreover, the offence was committed in company and there was at least a degree of premeditation about it. Certainly by the time that MH arrived at the offender's place with the deceased in his car on the day of his death, the offender was well aware that MH intended carrying out his stated intention to kill the deceased and that he was expected to participate in MH's plan to do so." 38Buddin J accepted expert evidence that the offender was somewhat more immature for his age than normal and was thus more vulnerable to the influence of MH than might otherwise have been the case. His background was appalling, having been abused from an early age by his natural parents who were intellectually disabled. Having been placed in foster care, he was eventually adopted when he was 12 and lost contact with his parents, which caused considerable distress. He was genuinely remorseful and his coming forward was prompted by strong feelings of guilt. Whilst in custody he had made substantial progress in his personal development. An additional material factor was the offender's willingness to give evidence against MH. He had no prior criminal convictions and was otherwise a person of good character. He was most unlikely to reoffend. When transferred ultimately to adult prison he would need to be placed in protection. 39The offender was sentenced to eleven years imprisonment with a non-parole period of seven years. The special circumstances "in particular" comprised the fact that the offender had not previously been in gaol and that, upon release, he would require considerable supervision and assistance to facilitate his reintegration into the community. 40(For completeness I should mention R v Harris [2000] NSWSC 285 and R v Barker [2001] NSWSC 295, but these cases are for various reasons so different from the present as not to be of any real assistance.)
Calculation of the Sentence for Armed Robbery 41Dealing firstly with the armed robbery charge, the sentencing judge referred to the guideline in R v Henry (1999) 46 NSWLR 346 as relevant, noting that the seriousness of the offence escalates depending on the weapons used and how they are used and noting also that it was important not to double count the effect of the use of the firearm for the robbery and the murder of Mr Rashid. His Honour noted, as earlier stated, that the robbery was planned, although not as planned as many, and was aggravated by the firing of the non-fatal shots. His Honour mentioned the relevant discount for a plea of guilty and the significant added element of leniency on account of the Ellis factors. His Honour also thought that the applicant's criminal history was more relevant to the armed robbery charge than to the murder charge. He concluded - "The maximum sentence is imprisonment for 25 years, which is the main guidepost to the fixing of a sentence. Further, generally heavy sentences are appropriate for persons who commit armed robbery in order to feed a drug habit, as was the case for Mr Raad: R v Ellis (1993) 68 A Crim R 449." [Emphasis added.] Although there was no appeal in respect of this sentence, I wish to deal with what, in my respectful opinion, are serious errors in the above statement, lest it be thought that by my silence I agreed with them. 42In my opinion, the maximum sentence in respect of any offence cannot be the " main guidepost for the fixing of a sentence" unless the offence either falls within the class of most serious cases for the commission of the offence or is close to it. In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 this Court said (omitting references) - "[51] The statutory maximum penalty has been regarded as an expression of the policy of the legislature in providing for the offence ... or as a reflection of the seriousness of that offence as perceived by the public ... It has been reserved for the "worst type of case falling within the relevant prohibition" ... although the adoption of that phrase is not an occasion for the imposition of a lesser sentence if it is possible to envisage a worse case ... [52] Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum ... The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made ... [53] There is nothing in Division 1A [of the Crimes (Sentencing Procedure) Act 1999, providing for standard non-parole periods] to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence. The focus is, however, likely to shift more towards the standard non-parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences." 43In Markarian v The Queen [2005] HCA 25 the significance of the maximum sentence was explained by Gleeson CJ, Gummow, Hayne and Callinan JJ in the following terms - "[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors , a yardstick. [Emphasis added.] That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty ...and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage: "Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity." The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence." 44I discussed this issue in Gore and Hunter v R [2010] NSWCCA 330 as follows (quoted not because it is authoritative but simply because there is no point in attempting to rephrase it) - [37] [After setting out the above passage from Markarian.] It is vital, as it seems to me, to give full weight to the italicised phrase to avoid the tendency to give the maximum term too much, even determinative, significance. In referring to the rarity of appropriately starting with the maximum, their Honours were not only referring to the order of reasoning but also the mode of applying it as a "yardstick". Of course, as a matter of logic, the problem of according the maximum penalty any primacy of significance over the other relevant factors to be taken into account is accentuated by the difficulties involved in comparing a case that is not in the worst category with (a necessarily hypothetical) one that is, and then attempting to make some adjustment - which must be itself highly impressionistic (or instinctive) - to apply the comparison in any useful way. [38] Accepting the maximum sentence as reflecting the Parliament's view of an appropriate sentence for a worst category case - this being in fact a necessary construction having as its basis constitutional theory rather than any actual historical reality - it does not follow at all that any inference can be drawn about the intention of Parliament as to what kind of case would fall into the category which should attract a sentence, say, halfway between zero and the maximum or a third or a quarter of the way and so on - which points to the inherent illogicality of the opposite approach. (I pass over the not insubstantial problem of what is meant by zero in this calculus and what would be a case falling into the least serious category.) Putting this in another way, it cannot be right to reason that, by virtue of the maximum sentence, any sentence in a case of significantly less culpability can be calculated, even broadly, by reference to the maximum. This is to give illusory measurement to essentially incommensurable factors. Thus, it simply cannot meaningfully be said of any given set of circumstances, that, for example, they are half (or nearly half or broadly half) as serious as a case in the worst category. By parity of reasoning (with unfeigned respect for those who take the other view) it cannot be right to either criticise or approve a sentence by reference to the proportion it bears to the maximum. All one can say is that the culpability in the former falls short by an indeterminate (but, say, major or minor) degree from that which would bring the case into the worst class. The greater the degree by which the instant case falls short of the worst category, so also must the sentence be short of the maximum but, since no comparison can give rise to an arithmetical proportion - or a range of proportions - in virtually every case the maximum can provide no more than a very broad perspective. [39] The very fact that the worst category case must, of necessity, be a hypothetical construction is also a substantial (indeed, to my mind insurmountable) difficulty in the way of using it comparatively for the purpose of any kind of calculation." 45Taking up the sentencing judge's assessment of the significance of the applicant's drug habit in respect of the seriousness of the armed robbery, the judgment his Honour referred to ( Ellis v R (1993) 68 A Crim R 449 - not the confessional Ellis ) is not, with respect, authority for characterising the offender's drug habit as an aggravating feature or requiring a heavier sentence than would otherwise be the case. The true significance of an offender's addiction was discussed in R v Henry (1999) 46 NSWLR 346: per Spigelman CJ at [171 ff] and per Wood CJ at CL at [215 ff], the latter citing what Hunt J said in Ellis as a refusal to consider drug addiction as a mitigating factor. Both their Honours make clear, however, that the need to support a heroin habit may provide an explanation for the offence and support the finding of other connected mitigating features. Calculation of the sentence for murder 46The approach of the sentencing judge to the sentencing of the applicant for the murder of Mr Rashid was expressed as follows - "[32] ... Most of this offence I have already discussed or are covered in the subjective matters that I have dealt with in relation to the armed robbery. I bear in mind that the sentence must be imposed under the regime that existed prior to the institution of a standard non-parole period and in accordance with the range of sentences that would have applied at the time of the offence. The statistics, from the Judicial Commission of New South Wales, provided by counsel, are of some assistance, but not overly helpful. The statistics provided disclose the term of the sentence, ie the head sentence, imposed for murder in circumstances where there was no standard non-parole period that applied. It shows that the top third of the sentences imposed were for 22 years and above. Of course these statistics take into account sentences imposed on persons who had pleaded guilty and were the subject of significant discount. Nevertheless, to the extent that they disclose a range of sentences, it is appropriate that the commencement point for the sentence to be imposed for this murder ought be at the bottom of the top-third of that range, namely, 22 years. That is the commencement point suggested by the Crown and, in this case, I accept that it is an appropriate point. [33] As already stated, I apply the highest level of discount for the plea of guilty and a significant discount for the factors associated with the voluntary disclosure and those factors associated therewith. But I fix a sentence, which I consider to be appropriate in all the circumstances. [34] I do not find special circumstances. The sentence that I will impose will have a sufficient non-parole period to allow for his supervision and to ensure that he returns to a life without crime, without drugs and alcohol, and with the kind of stability that has earned him a leniency that, for such a serious offence, would not otherwise be given." 47It is my respectful opinion that the sentencing judge's use of the JIRS statistics constituted a significant error. There is no explanation, either in point of principle or assessment of relative seriousness, for selecting the "bottom of the top third" of the sentences passed for all murders as representing the appropriate starting point for this particular case. Accepting that one can, in a broad sense, compare the seriousness of this case with other cases of murder, the range of objective and subjective facts varies so greatly as to prevent any classification on the basis of a proportion of the sentences passed for all cases, especially because the various types of murder differ in their elements and there is no basis for thinking that any of the sentences in the top third are for felony murder. If one were to make a general statement of relative seriousness (omitting subjective features) to my mind, other things being equal, the killing of a person intending to do so involves a higher degree of moral turpitude than killing without such an intention, whilst killing where there is no intention either of inflicting death or serious injury involves still less moral turpitude. Broadly speaking, felony murder falls into this class. Of course, other things are usually not equal at all, so at this level of abstraction such a generality is only slightly, if at all, informative. Yet this is the level of abstraction that corresponds with the opacity of the statistics utilised by the sentencing judge. In principle, it cannot provide an appropriate determinative measure of the starting point for a particular sentence, a fortiori when the subjective features are included in the arithmetical result. It will have been noted that there were significant subjective factors other than the Ellis personal features that were relevant to the applicant's sentence. Their significance could not be taken into account by mere reference to the statistics. Putting the argument in another and perhaps simpler way, assume that all the objective and subjective features of the cases in the sample were known; what happened here would have entailed regarding all those circumstances as irrelevant. In principle, this cannot be right. Another difficulty is that the sample comprised 143 sentences imposed between July 2001 to June 2008, of which 13 were life sentences, a little over 25% of the sentences in the top third. Apart from skewing the class upwards, life sentences are indeterminate, and so cannot yield any number for calculating the "bottom of the top third". 48In Hili v The Queen ; Jones v The Queen [2010] HCA 45, especially at [48]-[49], the High Court criticised the use of the Judicial Commission's statistics for the purpose of considering the appropriateness of the sentence under consideration in that case. Dealing with the question of consistency, the Court said - "[48] Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. The Court cited with approval what was said by the plurality in Wong v The Queen (2001) 207 CLR 584 at 606 [59] - "... recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." [My emphasis.] 49Accepting that past sentences may illustrate the range which can be "of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and appellate courts" ( Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194 per Simpson J at [303]) and "can and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (ibid at [304]), even then they cannot be used arithmetically to determine a sentence or a key element in the sentencing calculation such as the starting point here. Depending on the size of the sample and the judicial experience of cases within it, the statistics might well provide a useful checkpoint or warning signal but cannot be anything more than suggestive. 50Here, the sentencing judge used the statistics to determine what his Honour described as the "commencement point for the sentence to be imposed". Although it may be, as was conceded by counsel for the applicant in this Court, that 22 years was, as it happened, not outside the available discretionary range (and even assuming, though his Honour does not say so, that this consideration confirmed the result of the arithmetic), to give to this term the significance of a starting point was, to my mind and with every respect to the sentencing judge, fundamentally wrong. And the mere fact that it might happen to be within an appropriate discretionary range does not make this error any less significant, since it was the reason given by his Honour for selecting the figure of 22 years. Had his Honour not made this error, he might well have selected a significantly lower figure as the starting point. 51To my mind, the sentencing judge erred in another significant respect. His Honour identified the "highest level of discount for the plea of guilty" (25%) as applicable and added "a significant discount for the factors associated with the voluntary disclosure and those factors associated therewith". Quite what his Honour meant by this phrase is uncertain but it seems to be that the approach taken was to isolate all the features connected with the voluntary disclosure (both personal and policy) and apply them to reducing the commencement point of 22 years together with the discount for the plea of guilty. Identifying the policy reduction is understandable, indeed, necessary when giving a discount for a plea or assistance, since it must apply to the sentence which would otherwise be imposed. It is utilitarian in function and does not depend on the personal characteristics or subjective features of the offender. It is wrong in principle, however, to start with a number reflecting the objective factors and then reduce it by reference to subjective factors that should form part of the objective/subjective synthesis. There is much to be said for adopting in Ellis cases the approach used for pleas of guilty and in the other assistance cases, namely to specify the utilitarian discount given, not only in the interests of transparency, but to further the policy objective of the discount. As demonstrated by the examples mentioned above, this approach has not yet been adopted and, though in my view desirable, is not essential. This is not, however, what the sentencing judge did, since his Honour decided on the starting number absent the policy and personal Ellis features and the applicant's other subjective matters. 52Let me now move to the calculation undertaken by the sentencing judge. Applying a utilitarian discount of 25% for the plea of guilty to the commencement point of 22 years yields 16 years and six months. The ultimate head sentence of fourteen years accordingly reflected an allowance of two years and six months (or just over 15%) for what his Honour called "the factors associated with voluntary disclosure". With all respect, this reduction could not be said to provide any real encouragement to other persons in the applicant's position to come forward to confess their guilt of the crime of murder. To the contrary, I believe it can only be characterised as likely to deter any offender who might be minded to do so. 53No special circumstances were found that justified any adjustment of the statutory ratio of parole period to total sentence. If the applicant had been sentenced to a head sentence of 16 years and six months, the "default" non-parole period would have been slightly over 12 years and four months. The applicant's non-parole period of ten years and six months thus represented a deduction for the Ellis features of only one year and eight months. This emphasises the above conclusion, namely that the sentence imposed, so far from encouraging a person in the applicant's position to come forward, would powerfully deter him or her from doing so. 54Putting this in another way, Kirby J said in Ryan - [91] [Referring to the language of Street CJ in Ellis , and McHugh J in AB v The Queen , the] ... words "significant" and "considerable" are adjectives of degree. Prima facie a large deduction in sentence is appropriate in such a case. Otherwise, the judges concerned, when they expressed the applicable rule, could have used lesser adjectives, such as "modest" or "minimal" or perhaps the ever enigmatic "appropriate"... In my opinion, the applicant was not accorded a "significant", "considerable" or "large" deduction but, rather a "modest" or "minimal" one. 55I therefore respectfully conclude that the sentence was affected by significant errors of law and was also manifestly excessive. Special circumstances 56When dealing with the question of special circumstances, the sentencing judge referred only to the issues of future supervision and continuing rehabilitation. It is not clear whether he formed the view that the Ellis factors were not capable of being special circumstances within the meaning of s 44(3) the Crimes Sentencing Procedure Act 1999 or that, being special circumstances, they did not justify adjustment of the parole period or, perhaps, that they were already accounted for in setting the head sentence and it would amount to double counting if they were utilised to adjust the non-parole period. Since the applicant must be resentenced ( Douar v The Queen (2005) 159 A Crim R 154; Baxter v The Queen (2007) 173 A Crim R 284), it is not necessary to deal with the contention of counsel for the applicant that the sentencing judge erred in disregarding the Ellis features in his assessment of special circumstances. 57For the reasons set out below, I am of the view that Ellis considerations are special circumstances capable of justifying a variation in the s 44 ratio and do so in this case. Apart from more direct reasons, it is clear from the cases cited above that this Court has habitually taken this approach. Resentence 58In considering this question, I have taken account of the sentences passed in the cases discussed above. It is unnecessary, indeed inappropriate, to make a detailed comparison of those cases with each other and the present case. They exhibit, however, a broad consistency of outcome which is informative. Whilst the subjective features of some of the offenders were somewhat more mitigating than those of the applicant, it seems to me that the objective nature of the murders they committed were, on the whole, markedly more serious than that committed by the applicant. The most obvious more serious elements were the intention to kill (except in one case) and the premeditation in every case. 59It is appropriate to accept the sentencing judge's factual findings and assessment of the relevant objective features of the crime and subjective features of the applicant. This was objectively a serious case of felony murder, in which the applicant killed the deceased by intentionally firing a loaded firearm brought to the scene to effect the armed robbery of the deceased. He did not intend to cause death or grievous bodily harm but must have realized that, with the safety catch off and his finger on the trigger, serious injury if not death was a reasonable possibility. Subjectively, the applicant was aged 40 years at the time, with an appalling criminal record including offences of armed robbery. His early life was tragically dysfunctional and he lived on the streets from the age of fifteen, where he started abusing drugs and became a drug addict. He had periodically managed to stop using but had lapsed shortly before the offence. He voluntarily confessed to his crime, motivated by powerful feelings of remorse, and was for all practical purposes completely rehabilitated. His strong continuing family support was the major factor in the applicant's rehabilitation and will remain of vital importance. As the sentencing judge opined, subject to the effects of gaol itself, reoffending is most unlikely. 60The applicant's affidavit discloses that he has made as much good use of his time in gaol as is possible, undertaking various education courses and working as a machinist. He says that the other inmates "don't talk to me much" because he gave himself in but says "I can handle that". He says that he has no friends but this does not worry him. He is very concerned about the difficulty his wife has in visiting him given the location of the gaol where he is presently being held and hopes to move closer to Sydney. There is no indication of when this might occur, if ever. Whilst his isolation from other prisoners does not, at the present, worry the applicant, this is a significant hardship as it seems to me, when prolonged and is exacerbated by the inability of his family to visit him. To my mind, since his family's support was the major factor in the applicant's reformation, his isolation from them is an important factor to be taken into account on sentence. The sentencing judge mentioned the importance of his family connexion in counterbalancing to some extent what must be accepted as the deleterious effects of long-term imprisonment. 61Applying a deduction of 25% for the applicant's plea of guilty and an additional discount for the Ellis factors, including the policy objective of encouraging offender's such as the applicant to come forward, I would impose a head sentence of twelve years. In my opinion this sentence, although significantly less that that which would be appropriate in light of the facts and circumstances of the offence, is not unreasonably disproportionate having regard to the policy considerations to which I have already referred. 62I now turn to the non-parole period. 63At least three matters comprise, on the face of it, special circumstances justifying a variation of the statutory ratio between the balance of the term and the non-parole period. These are the need to ensure that the minimum sentence to be served encourages persons who have committed murder to come forward, the social isolation of the applicant in gaol which not only renders his imprisonment more harsh than otherwise but can have a seriously deleterious affect over the long term, and his separation from his family, who have been the principal contributors to his rehabilitation which it is in the public interest to maintain and encourage. 64The application of s44 of the Crimes Sentencing Procedure Act 1999 was considered by a five judge bench of this Court in R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704. After citing a number of decisions to the effect "that the purpose of a non-parole period was not to fix the minimum sentence to be served, so as to ensure that an offender did in fact suffer at least that degree of actual punishment ... [but to] give primary weight to the rehabilitative purposes of parole, Spigelman CJ (with whom the other judges agreed, Sully J adding some further remarks) pointed out that this approach was held to be wrong in Power v The Queen (1974) 131 CLR 623 and added - "[57] The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of "special circumstances" must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole. [58] The length of the non-parole period remains, however, of potential significance. Indeed, the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed percentage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases. It is not, however, the only perspective." 65Having noted that "there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence" [63] his Honour went on to say - "[65] In addition to the need to identify and articulate "special circumstances", in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. ... ... [67] Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence." 66I interpolate the observation that there is a logical tension created by requiring on the one hand that the non-parole period must itself appropriately reflect the criminality involved in the offence and applying the very same test to the head sentence, it being a given, by virtue of s 44(3) that, in the absence of special circumstances, the non-parole period will be 75% of the head sentence. This tension is all the greater when it is appreciated that release at the end of the non-parole period in respect of a sentence of longer than three years is not at all automatic. The distinction must therefore lie in the fact that the non-parole period represents the time which must be spent in prison whilst the head sentence represents a period of which, absent special circumstances, 25% may be served at large if the prerequisites of the grant of parole are, in the opinion of the Parole Board, satisfied, that liberty itself being conditional upon complying with the conditions of parole. So considered, it does not seem to me to be double counting to have regard to a particular circumstance which operates to reduce a head sentence, necessarily in an unspecified way (unless quantified for assistance) and also treat it as a special circumstance which additionally justifies the downward variation of the non-parole period from that which would result from the statutory ratio. Here the circumstances in which the offender's guilt came to light are certainly exceptional by any standard and, to my mind, clearly constitutes a "special circumstance". In accordance with the principle enunciated in Ellis , of course its presence has the result of significantly reducing the head sentence. In my view, the policy of extending such leniency in order to encourage others in the position of the applicant to come forward can also affect in a marked way the actual minimum term which must be served in prison to give effect to that policy, recognizing, however, that the ultimate minimum term must not be unreasonably disproportionate to the facts and circumstances of the offence. 67In setting the head sentence, I have made some allowance for the applicant's situation in gaol as representing increased harshness but not in respect of the potential effect of the long term continuation of that situation on his rehabilitation. I did not take into account the effect of separation from his family. Of course, it is scarcely a "special circumstance" for a prisoner to be separated from his or her family and for visits to be difficult if not impossible because of the location of the gaol. However, in this case, the applicant's remarkable rehabilitation which led him to confess to a very serious crime, at the inevitable risk of going to prison for a long period, was so much the extraordinary product of his relationship with his family that its inevitable attenuation by imprisonment should be reduced as much as possible consistent with avoiding an unreasonably disproportionate sentence. 68Taking these considerations together, I am of the view that the non-parole period should be six years. 69I have had the benefit of reading in draft the judgment of Buddin J with whom McClellan CJ at CL agrees and appreciate that their Honours do not agree with my view about the presence in this case of special circumstances justifying a variation and the minimum sentence that is consistent with the requirement of s23(3) of the Crimes (Sentencing Procedure) Act 1999. I regret that, after anxious consideration, I am unable to agree with their Honours' proposed non-parole period. It is not necessary that I should say more than is stated above as to my reasons for the conclusion to which I have come. However, I wish to emphasise the decisive importance of the perspective with which I have approached the issue of unreasonable disproportion. That is, the need to give full weight to the simple but fundamental fact that, when he volunteered his guilt to the police, the applicant was facing no sentence of any kind whatever. The sentence now being imposed is thus, practically speaking, counting up from zero. This is radically different from a case in which assistance is given to the authorities by an offender whose guilt can be or is proven. In that case, the sentence is produced by counting down from the term that would otherwise have been imposed. It follows that, in the present case, the sentences in other cases of murder provide, in principle, far less guidance than in what I might call the "counting down" cases, though they remain relevant as features of the instinctive synthesis which is ultimately determinative. 70In respect of the public policy objective of encouraging persons in the position of the applicant to come forward, it is material to ask how likely would it have been that the applicant or - more correctly - someone in his position would come forward had he been told that the consequence would be a sentence having a minimum term to serve of nine years. With respect, it seems to me that such advice would almost certainly - at least, very probably - lead to a change of mind. The policy would thus be reduced to practical irrelevance. 71I acknowledge, of course, the central importance of the fact that the applicant, by his intentional act, caused the death of another human being. It is the tension between the significance of his coming forward on the one hand and the objective reality of the offence on the other that makes this case so difficult to resolve. Proposed orders 72I propose the following orders - (i) grant leave to appeal against the sentence; (ii) allow the appeal and quash the sentence imposed at first instance; (iii) substitute a sentence comprising a non-parole period of six years commencing on 7 February 2008 and ending on 6 February 2014 and a balance of term of six years commencing on 7 February 2014 and ending on 6 February 2020. 73BUDDIN J: I have had the considerable advantage of reading in draft the judgment of Adams J. I share his Honour's view that this court should intervene and proceed to re-sentence the applicant. I also agree with his Honour that the total term of imprisonment should be one of 12 years. In my view, however, the non-parole period should be one of 9 years. 74At the outset of the sentencing remarks, the primary judge observed that: [t]he purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. ... There is no single correct sentence, and the often-complicated interplay of considerations point in different directions. 75Those remarks were particularly apposite to the present case, given its highly unusual features. Notwithstanding the primary judge's conclusion that the applicant did not intend to kill or to inflict grievous bodily harm upon the victim, this was nonetheless an objectively serious example of the offence of murder. Moreover, as Adams J has pointed out, the applicant had a lengthy criminal record which included two prior convictions for armed robbery. The evidence revealed that the applicant's life, until the commission of these offences, had been driven by his addiction to illicit drugs. On the other hand, as the primary judge observed, the man who stood for sentence "was a very different person". His Honour concluded that "no account of [his] history...can adequately describe the transformation that has occurred in him [and that he had] wholly rehabilitated himself". A significant feature of his "transformation" was his disclosure of his guilt of these offences to the authorities in circumstances in which he would not have otherwise been charged. The significance of his having done so cannot be underestimated. Apart from any other consideration, his actions have clearly assisted the family and friends of the victim in that they now know the circumstances in which the victim met his untimely death. 76Adams J has analysed in considerable detail the primary judge's reasons for arriving at a "starting-point" of 22 years imprisonment. For present purposes, it is unnecessary for me to engage in a similar analysis. First of all, as Adams J notes, senior counsel for the applicant disavowed, both in written submissions and during the course of oral argument, any contention that such a "starting point" was not open to his Honour. More importantly I accept, in any event, the central argument advanced on the applicant's behalf to the effect that the extent of the discount allowed for the "Ellis factor" was inadequate. Adams J has demonstrated why that submission should be accepted. 77It is necessary to now consider something else to which the primary judge referred during the course of the sentencing remarks. His Honour said: Because the offence occurred in 2001, [the applicant] is required to be sentenced in accordance with the law, as it then existed, and there is no standard non-parole period for the offence. The introduction of a standard non-parole period for the crime of murder had a significant effect in increasing the range of sentences generally imposed for the crime of murder and it is necessary to bear in mind the range of sentences that were imposed at the time that the conduct occurred, rather than at present. 78I respectfully agree with those observations. The real challenge for the primary judge lay in determining the "range of sentences" in 2001 for a case of the kind presently under consideration. In that respect the raw statistics, as Adams J has pointed out, would not have provided very much assistance. On the other hand, this Court has been furnished with a number of cases in which a person has voluntarily disclosed his or her guilt of a homicide that would not otherwise have come to light. Regrettably, the primary judge was not provided with the same level of assistance. 79As Adams J has comprehensively examined those cases in some detail, I am relieved from the need to embark upon a similar exercise. As Adams J demonstrates, the researches of counsel have revealed that it is only in very rare instances that an offender has assisted the authorities in the fashion in which the applicant has done. To the list of such cases may be added a further decision to which I referred in R v JSK [2004] NSWSC 470. I there said that: [I]t is common ground that the only decisions which provide any real guidance, given the highly unusual circumstances of the present case, are the decisions of Hidden J in R v TNT [2002] NSWSC 537 and of Sully J in relation to the same offender [2002] NSWSC 394. Although I must of course exercise my own independent sentencing discretion, it is apparent that the decision of Hidden J in particular is useful because the circumstances of that case bear considerable similarities to the present case. That offender was also aged 16 at the time that he participated, with others, in committing the offence of murder. He too pleaded guilty and got the benefit of having provided assistance to the authorities. There was also an additional measure of leniency extended to that offender on account of the considerations identified in R v Ellis . In the upshot Hidden J, after allowing an overall discount of 50%, sentenced that offender to a sentence of 10 years' imprisonment with a non-parole period of 6 years. There were as might be expected, features which distinguish the two cases, not the least being that, only a mere week before the murder in respect of which that offender was sentenced by Hidden J, he had killed another person. For that offence, he was sentenced to 14 years' imprisonment with a non-parole period of 9 years by Sully J. The sentence which Hidden J imposed was wholly accumulated upon the sentence imposed by Sully J and was undoubtedly affected by considerations of totality. It is to be noted that Sully J also sentenced that offender for an additional offence of unlawful imprisonment. Nor was there any Ellis factor in respect of the sentences imposed by Sully J. Moreover in relation to the homicide offence with which Sully J was concerned, the offender actually fired the fatal shots in what was, as his Honour observed, a gangland execution. It would appear that that offender was under the control of other members of a Vietnamese gang at the time of the commission of each of the offences. [at para 51] 80Those cases are too few in number to provide anything in the nature of a "range of sentences". Nevertheless, the outcome in each of those cases indicates a significant degree of consistency in approach. Accordingly, and despite the fact that there are differences between each of those cases and the present case, those decisions do provide something of a frame of reference for the determination of the appropriate sentence in this case. As I have said, I agree that the applicant has made good the submission that the discount for the "Ellis factor" was inadequate. My preliminary view as to that matter has been fortified by a consideration of the decisions to which Adams J referred, and in particular, the length of the appropriate non-parole period. 81The primary judge said that: I do not find special circumstances. The sentence that I will impose will have a sufficient non-parole period to allow for his supervision and to ensure that he returns to a life without crime, without drugs and alcohol, and with the kind of stability that has earned him a leniency that, for such a serious offence, would not otherwise be given. 82It is at this point that I part company with Adams J. I agree, for the reasons given by the primary judge, that this was not a case which warranted a finding of "special circumstances". Moreover, the non-parole period which I propose is the minimum period of actual incarceration that the circumstances require, notwithstanding the very powerful subjective factors upon which the applicant was entitled to rely: R v Simpson (2001) 53 NSWLR 704 [at para 57]. 83In approaching the task of re-sentencing I have had particular regard to what was said in the plurality judgment in R v Markarian (2005) 228 CLR 357 about the difficulties to which "an arithmetical process" to sentencing may give rise and especially where, as here, there exists "a complex of inter-related considerations" [at para 37]. 84Finally, unlike Adams J, I would forbear from expressing a view about the sentence imposed in respect of the armed robbery offence. No application for leave to appeal was brought in respect of that sentence and accordingly, the parties did not address the Court in respect of it. 85I propose the following orders: 1 Grant leave to appeal. 2 Allow the appeal and quash the sentence imposed at first instance. 3 Substitute a sentence comprising a non-parole period of 9 years commencing on 7 February 2008 and expiring on 6 February 2017 and a balance of term of 3 years expiring on 6 February 2020. 4 The applicant is eligible for parole on 6 February 2017.
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RAAD
R
[2005] HCA 25
[1998] NSWSC 723
[1998] NSWSC 533
(1974) 131 CLR 623
(1986) 6 NSWLR 603
(1999) 46 NSWLR 346
(2005) 228 CLR 357
(2001) 53 NSWLR 704
(2001) 206 CLR 267
(2001) 207 CLR 584
(2004) 60 NSWLR 168