Willetts
62Although Mr Buchen, who appeared for Willetts on the appeal, submitted there was a strong overlap between his client's two grounds of appeal, it will be convenient to deal with each ground separately.
63As with Gurney, there is no ground of appeal that suggests the sentence was manifestly excessive. The first ground is focussed upon an observation made by the sentencing judge that Willetts "played a lesser role in the infliction of the wounds" upon the deceased.
64Mr Buchen subdivided this ground into four segments. These were, first, that Gurney inflicted the genital mutilation upon the deceased; secondly, that the majority of physical assaults on the deceased were carried out by Gurney (eg he initiated the attack by punching the deceased, dragged the injured deceased into the house and verbally confronted the deceased in the house prior to the genital dismemberment); thirdly, that her Honour's findings, in general terms, should have picked up an inference that it was not Willetts who inflicted the fatal wound and, finally, that Gurney's mental state was not a countervailing feature to Willetts' lesser role of sufficient weight so as to justify a finding of equal culpability.
65In relation to the third aspect relied on by Mr Buchen, counsel's submission was that the onus of proof beyond reasonable doubt lay on the Crown to establish that Willetts had inflicted the fatal wound upon the deceased, whereas Willetts carried the onus on the civil standard to establish that he did not perform the act or that the act was performed by another person. Counsel relied on the authority of Olbrich v R (1999) 199 CLR 270; 108 A Crim R 464; [1999] HCA 54. In relation to the fourth segment of ground 1, it will be more appropriately dealt with under ground two, since it directly raises issues of parity or, more accurately, due proportion, as between the two murder sentences.
66In relation to the first three aspects of this ground of appeal, I am not satisfied, upon a fair reading of the sentencing judge's remarks, that her Honour erred by failing to give adequate effect to the finding she made that the applicant played a lesser role in the commission of the murder offence.
67The first point to be made is that her Honour's actual finding was that "the lesser role" played by Willetts related to the "infliction of the wounds upon the victim". It was not her Honour's finding that the applicant played a lesser role in the commission of the murder offence. Secondly, apart from the genital mutilation, the agreed statement of facts did not permit her Honour to find, nor did she, who it was who inflicted upon the deceased each of the other major wounds, including the fatal stab wound. It needs to be recalled that the severe facial injuries sustained by the deceased went beyond mere punching, and were consistent with the application of blunt force from a wooden axe handle, as the sentencing judge noted, later to be found at Willetts' home. The six major wounds on his body described as "slash type wounds", were likely to have been inflicted by a weapon such as a sword. The amputation of the victim's penis was most likely inflicted using a knife or perhaps a pair of scissors. The fatal wound was also likely to have been inflicted by a knife, but there was no evidence as to the precise identity of the person who plunged the knife into the deceased's chest and through his heart.
68The Agreed Statement of Facts made it clear that it was Gurney who had dragged the deceased into the premises and it was he who, at some stage, cut the deceased's penis off. This wound, according to the statement, could have been inflicted by using a knife, or a pair of scissors used to cut poultry. It is also true that the Agreed Statement of Facts made it clear that earlier when an altercation had developed between Gurney and the deceased in the front yard of the house, it was Gurney who had punched the deceased in the face. The statement did not detail who it was, of the two men, who inflicted the more serious facial injuries upon the deceased.
69The Agreed Statement of Facts recited this as the sequence of events:-
The sequence of events in terms of the time and location within the deceased's premises at which the injuries were inflicted on the deceased, and the extent of the participation of each accused in the infliction of the deceased's injuries, is not entirely clear when considering all of the evidence, including the forensic evidence...
There is no direct evidence as to how, where and when the stab wound to the heart was inflicted on the deceased. However, given the forensic evidence, it appears that this wound was inflicted on the deceased while he was lying inside the house as, in the opinion of Dr Lyons, the deceased would not have been in a condition to hold a conversation with Gurney inside the house had this wound been inflicted on the deceased earlier, while he was in the front yard of the house.
70A close reading of her Honour's remarks on sentence make it clear that "the lesser role played by Willetts in the infliction of the wounds upon the victim" was, as the Crown submitted, a reference to the topic discussed later in that paragraph, namely that:-
Mr Willetts had no such personal motive, but it is accepted that he did not engage in the mutilation of the victim's genitalia.
71In all other respects, it was simply impossible for the sentencing judge to determine who it was who had inflicted each of the other major injuries upon the deceased. As the written submissions before this Court accepted, where there is a joint criminal enterprise to kill a person, participants in that enterprise will, prima facie, be equally liable for the offence of murder, and subject to the same maximum penalty. Where, however, it is possible to identify the extent of the role played by each participant in such an enterprise, this will ordinarily become a significant determinant of culpability, and may warrant the imposition of different penalties ( Carruthers v R [2007] NSWCCA 276 at [37] - [40]). Equally, insofar as it can be demonstrated, the extent to which a particular offender participates in the physical acts of violence may also be a factor that bears on the assessment of his culpability, and may accordingly justify a differentiation in sentence imposed, as between the co-participants in the enterprise.
72In the present case, however, it is clear, from both the Agreed Statement of Facts and her Honour's findings, that the conclusion that the offenders were engaged in a joint criminal enterprise to kill the deceased, and that this agreement was formed immediately prior to the fatal assault upon him, was fully justified. Her Honour rightly described the immediate circumstances as an attack upon a 61-year-old man, arising from the combined force of two armed men confronting him in the yard of his home in the early hours of the morning. Her Honour was alive to the fact that it was Gurney who inflicted the severance of the penis but, in relation to each and every other major aspect of the assault, it was simply impossible to tell which man had inflicted the individual wounds, and in what precise sequence. The effect of Mr Buchen's submissions was that this court was being asked to determine that it was, in fact, Gurney who had inflicted the fatal wound. It is impossible, indeed quite inappropriate, for this court to be asked to do so in circumstances where the trial judge correctly determined that she could not determine the issue. The infliction of the wound was the product of the joint criminal enterprise, an enterprise participated in by both Gurney and Willetts.
73There is a further point that needs to be made. Willetts (as was Gurney) was represented by competent counsel. The sentencing hearing proceeded over a number of days. If Willetts wanted to challenge any aspect of the Agreed Statement of Facts, he could have done so. If, for example, Willetts had wanted to demonstrate to the sentencing judge that he had not inflicted the fatal wound, or that a substantial number of the more severe wounds had been inflicted by Gurney, he could have been called to given evidence to that effect. The point of the two offenders being dealt with in the one sentencing hearing was that it enabled the trial judge to receive from the parties any relevant evidence that would impact upon the individual culpability of each of the participants in the joint criminal enterprise. Both Willetts and Gurney, it appears, were content for the judge to proceed on the basis of the Agreed Statement of Facts. Willetts cannot now complain because the judge did not make findings of fact more favourable to him, when it was his choice, presumably, not to give evidence to challenge or override any matters in the Agreed Statement of Facts presented to the judge.
74Mr Buchen submitted to us that, in some respects, counsel then appearing for Willetts was "underdone". This was a reference to a remark in the transcript made by Willetts' counsel. To the extent that this suggests that trial counsel was, to a degree, unprepared during the sentencing hearing, it needs to be seen in its context. Counsel's complaint was based on the fact that he had not been in the case for very long, and that this situation meant that he was "scrambling" to obtain psychiatric and pre-sentence reports to have them ready for the hearing. There was no suggestion that counsel was in any way inhibited by a lack of instructions from his own client. Willetts was, at the time, in custody in Broken Hill where the sentencing hearing took place.
75For all these reasons, I have concluded that ground one cannot be sustained.
76Ground two was based on the proposition that Willetts has a legitimate sense of grievance arising from the fact that he received a more severe sentence than that of his co-offender. The complaint here is not that the sentence imposed on Willetts was inappropriate, but that the sentence imposed upon Gurney is one that gives rise to a sense of injustice ( Lewins v R [2007] NSWCCA 189 at [7]; 175 A Crim R 40 at 42, per Howie J).
77There are a number of strands to Mr Buchen's argument on this ground. As counsel readily suggested, there is an element of overlap between grounds one and two. Essentially, Mr Buchen submitted that a much heavier culpability lay upon Gurney than it did upon his client. Secondly, he argued that the aggravating feature represented by the genital mutilation ought to have been solely visited upon Gurney, not upon his client. Thirdly - this was the final segment that arose under ground one - insufficient weight had been given by the sentencing judge to the finding that Willetts played a lesser role when it came to assess the countervailing situations of each offender.
78Mr Buchen relied on two further matters. The first was that the co-offender Gurney had a more serious criminal record than did Willetts. Counsel placed emphasis on the fact also that, at the relevant time, Gurney was under a s 12 bond for an offence of maliciously inflicting grievous bodily harm. By contrast, Willetts was on a bond for a number of offences including domestic assault and the like matter. Finally, Mr Buchen referred to the fact that Gurney had a number of outstanding prison sentences to serve at the time he came to be sentenced by her Honour. The sentencing judge made the murder sentence concurrent by a period of nine months in relation to those other sentences that were imposed. The murder sentence given to Gurney commenced on 23 rd March 2009, just over nine months prior to the expiry of the aggregate non-parole period given for those other unrelated matters. That non-parole period had commenced on 1 st April 2008 and was to expire on 29 th December 2009.
79The point made by Mr Buchen was that only seventeen years and three months of Gurney's aggregate non-parole period was solely referrable to the murder matter. By contrast, Willetts received a non-parole period of nineteen years, which was solely referrable to the murder matter. This was yet another reason why Willetts, in an objective sense, might properly be said to have a legitimate sense of grievance arising from the way in which Gurney had been sentenced.
80Before considering these arguments, it is appropriate to make some brief general observations about the situation where co-offenders come to be sentenced by the one sentencing judge.
81First, it is obviously highly preferable and desirable for alleged co-offenders to be dealt with at the same time before the same judge. Where this is not done, and where administrative arrangements lead to different judges dealing with different co-offenders, serious problems can arise ( Lowe v R [1984] HCA 46; 154 CLR 606, per Brennan J at 617; and also per Dawson J at 622).
82Secondly, where the same judge comes to sentence two offenders at the same time and gives detailed reasons for imposing the sentences, taking into account the differing criminality of each, and the differing circumstances, an appellate court will be cautious and not overly willing to conclude that one of the offenders has a justifiable sense of grievance, simply because there are different sentencing outcomes ( R v Swan [2006] NSWCCA 47, per Barr and Howie JJ at [71]).
83In R v Wei Pan [2005] NSWCCA 114, Johnson J, with the concurrence of Giles JA and Hoeben J, referred to the parity principle in sentencing, as follows:
[34] The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v R (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at para 6.
[35] Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at para 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney , above, at para 16.
84This statement of the parity principle was adopted by Howie J in Lewins v R and Grove J in Nguyen v R [2008] NSWCCA 308 at [37]. It was also adopted by the ACT Court of Appeal in Pavicevic v R [2010] ACTCA 25 at [10].
85In dealing with this second ground of appeal, I propose to consider each of the individual elements or strands relied upon by Mr Buchen, and then examine the overall situation. As to the asserted difference in culpability between the two men, this has already been dealt with under ground one. The fact that Willetts was not involved in the genital mutilation was a matter clearly and appropriately taken into account by her Honour. It was taken into account in three ways. First, it was recognised as an aggravating feature of the offence. Secondly, it was an act perpetrated by Gurney on the deceased. Thirdly, it was an act that was not perpetrated by Willetts on the deceased, nor did he participate in it. There is no suggestion that her Honour failed to give consideration appropriately to each of these situations. On the other hand, in all other major respects, Willetts was a participant in the joint criminal enterprise that caused the death of the deceased.
86The second assertion, namely that Gurney's mental state was used unfairly in the sentencing for Gurney in a way that failed to give Willetts credit for the lesser role he had played in the attack, cannot be justified. There were a number of complicated and countervailing considerations that her Honour had to take into account. One of those was the mental condition of Gurney. It was clear that her Honour's finding that Gurney "was not able to exercise the judgment or self control of a reasonable person" was based substantially on aspects of his mental condition. It is true, as her Honour observed, that along with the psychiatric conditions identified by Dr Quadrio, there was the fact that Gurney had consumed amphetamines, alcohol and Serapax on the night of the offence. This court does not accept, however, that it is a fair reading of her Honour's decision that the impairment in judgment and self control suffered by Gurney, although it fell short of substantial impairment for the purpose of reducing the offence from murder to manslaughter, was substantially caused by the two men's "disinhibition" by reason of their consumption of drugs and alcohol. Certainly that was a factor, but her Honour made it quite clear that this did not lessen the culpability of either man.
87The position with Willetts is that her Honour found that, although the consultant psychologist's report had been unable to determine whether he had been experiencing symptoms of depression and anxiety at the time of the offence, there was a body of other evidence that enabled her to conclude, in his favour, that he had in fact been suffering from depression at the time of the offence. However, in his case, she was not persuaded that this compromised his capacity to form rational judgments to any significant extent. There was obviously a real difference between the situation of the two offenders in that regard.
88As I have said, a countervailing consideration was the extent to which Willets had been involved in the assaults at a lower level than Gurney. Her Honour found, correctly, in my view, that this difference lay essentially in the fact that Willetts had played no part in the genital mutilation. On this point, there was no other real difference that could be discerned between their levels of participation.
89The third aspect of counsel's submissions related to the more substantial criminal history of Gurney when compared to that of Willetts, and the fact that Gurney was on conditional liberty for a more serious offence than the one involved in Willetts'. As to the first aspect of this argument, it was a matter for her Honour to bring this difference to balance in the overall exercise of her discretion. I have no doubt that she did so. As to the second, Mr Buchen did not advance any authority to support his submission. In Frigiani v R [2007] NSWCCA 81 at [24], it was held that the commission of an offence whilst the offender was subject to a s 10 good behaviour bond constituted the aggravating factor listed in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 , regardless of the conduct in respect of which the bond was imposed. It has been said that the purpose of s 21A(2)(j) is to capture the common law principle that an offence committed while a person is subject to conditional liberty (on whatever basis that conditional liberty has been granted), constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour ( Porter v R [2008] NSWCCA 145, per Johnson J with whom Bell JA and McCallum J agreed). In general terms, it may be said that it will not ordinarily be necessary to examine the conduct involved in the commission of the offence in respect of which conditional liberty has been granted. Equally, the sentencing judge will not be required to be concerned, in ordinary circumstances, with the background to the factors under which conditional liberty has been granted. In the present matter, the difference argued for by Mr Buchen cannot be regarded as a relevant difference at all.
90Finally, there is the aspect dealing with the way in which her Honour backdated Gurney's murder sentence so that there was a degree of concurrence between completion of the earlier unrelated custodial sentences and the commencement of the murder sentence.
91I note from the transcript of the sentencing hearing that, during the discussions with counsel on 3 rd November 2009, her Honour had indicated a tentative view that she might commence Gurney's sentence on 4 th November 2009, to take account of this situation. As matters happened, her Honour did not take up that tentative suggestion. It may be that her Honour simply thought that it was inappropriate to do so. It may be that her Honour, perhaps, overlooked the matter. Either way, I am not prepared to find that this matter, of itself, could lead, in the present circumstances, to a finding of disparity. A ground asserting disparity is concerned with "such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated, having regard to the sentence passed on the other" ( England v R; Phanith v R [2009] NSWCCA 274, per Howie J (McCellan CJ at CL and Fullerton J agreeing, at [61] - [67]). The difference manifested by this particular matter cannot be described as "gross", "marked", or a "glaring" disparity ( Lowe v R ).
92I turn now to give consideration to the overall impact of all the matters raised by Mr Buchen on behalf of Willetts. At a superficial level, it may seem surprising that Gurney received a sentence of eighteen years, whereas Willetts received one of nineteen years. It is true that Gurney was, in some ways, the instigator of the "revenge" trip to the deceased's home. It is true that Gurney probably began the assault by punching the deceased. It is also true that Gurney committed the horrendous act of severing the deceased's penis while the deceased was alive. Yet, as the sentencing judge found, this was a joint criminal enterprise, spontaneously determined between the two men to instigate a fatal assault upon the deceased, and to kill him. Quite apart from the genital mutilation, the wounds inflicted upon the deceased were multiple, and demonstrated a vicious and callous attack. There were a number of aggravating features that legitimately impacted on the culpability of each of the participants in the enterprise. It was not possible, however, for the sentencing court to determine who had inflicted the fatal wound on the deceased, or for that matter, a range of other quite serious and vicious woundings. Each offender stood on equal terms in relation to the assault, save and except for the genital mutilation. In Gurney's case, the deceased had used the provocative words to him whereupon, in the light of his serious mental condition, the genital mutilation had been triggered. To that extent, the provocative words tempered that aspect of the culpability of the offence, so far as Gurney was concerned. The benefit of that moderation flowed through to Willetts as well. In addition, the sentencing judge acknowledged that Willetts had no part to play in that particular horrendous action.
93In relation to the subjective circumstances of the case, her Honour gave very detailed consideration to the position of each man. She had regard to the details of the plea and assistance given to Gurney, and the plea entered by Willetts. The sentencing judge gave very careful consideration to the mental condition of each man. As I have said, there was a real difference in this regard between the two. However, for proper reasons, Willetts was ultimately given a considerable recognition of the utilitarian benefit of his plea, notwithstanding that it occured relatively late in the piece. In addition, the sentencing judge came to the conclusion, in his favour, notwithstanding the absence of precise psychological evidence to that effect, that he had been suffering from depression at the time of the offence. The mental condition of the two men, however, was markedly different in terms of the ability of Gurney to exercise judgment and self control. Her Honour acknowledged that both of the offenders were significantly disinhibited by drugs and alcohol, but rightly concluded that that in no way operated, on its own, to excuse the actions of either. There were other matters of minor difference between them, their situations, and each of these was recognised by the sentencing judge.
94In short, there were a number of factors that pulled one way, and then the other, when the individual sentences were being assessed. To that extent, the sentencing judge was confronted with a complicated and difficult sentencing exercise, requiring very considerable skill and care. Quite apart from the assessment of the objective seriousness of the offence, the assessment of the culpability of each of the offenders, and their subjective circumstances, the pleas by both men and the assistance given by Gurney had to be added into the equation.
95The sentencing judge clearly determined that, absent the pleas (and assistance by Gurney), a proper assessment of the overall culpability of each man, in the light of his subjective circumstances, required a sentence that was, in each case, substantially the same. It has not been demonstrated that her Honour was in error in reaching the conclusion she did.
96I have concluded that, having regard to all the circumstances outlined, Willetts is not, objectively viewed, entitled to have a legitimate sense of grievance in relation to the sentence imposed upon Gurney.
97I propose the following orders:-
In relation to Gurney:
(1) Leave to appeal against sentence is granted
(2) The appeal is dismissed.
In relation to Willetts:
(1) Extension of time in which to appeal is granted
(2) Leave to appeal against sentence is granted
(3) The appeal is dismissed.
98HIDDEN J: I agree with the orders proposed by Whealy JA and with his Honour's reasons.
99In this Court a question was raised whether, in the circumstances, the severing of the victim's penis by the applicant Gurney amounted to gratuitous cruelty. Were it not for the concession that it did by counsel appearing for him in the sentence proceedings, I consider that that question would have required closer examination. However, her Honour had no cause to do so as it was a matter which was not in contest. In any event, making all due allowance for the circumstances in which it occurred, that act remained a particularly grave feature of Gurney's conduct.
101JOHNSON J: I agree with Whealy JA.