Ta'ala v R [2008] NSWCCA 132 | Case summary

1 CAMPBELL JA: I agree with Grove J. 2 GROVE J: This is an application for extension of time for seeking leave to appeal against severity of sentence imposed on 30 July 2004 and, if granted, to proceed with that application. At the hearing the Court received argument on the merits and indicated that the issues of extension of time and leave would be dealt with when judgment was delivered. The Crown opposed the granting of an extension. The magnitude of the sentences which I will shortly detail supplies sufficient reason not to apply a time bar nor to refuse leave to appeal. It is not necessary to explore the procedural failures whereby the applicant did not comply with time limits for filing notices and grounds of appeal and I would grant the extension and leave to appeal and proceed to a determination of the merits. 3 The appellant pleaded guilty in the Supreme Court before Davidson AJ to two counts of murder, for each of which a prescribed maximum penalty of imprisonment for life was available. Both killings took place at Sutherland on 28 May 2002. On the first count for the murder of Mark O'Callaghan the appellant was sentenced to imprisonment for a total term of 26 years commencing on 29 May 2002 with a non parole period of 19 years 6 months expiring on 28 November 2021, and on the second count for the murder of Tammy Lee (Tamika) MacKenzie to a total term of 35 years commencing on 29 May 2014 with a non parole period of 26 years 6 months expiring on 28 November 2040. The overall result was a total sentence of imprisonment for 47 years with a non parole period of 38 years 6 months. 4 An agreed statement of facts was placed before the learned sentencing judge and there was also tendered, as his Honour's remarks on sentence demonstrate, a bundle of documents which included a number of witness statements. 5 During the course of 28 May the appellant with others including one Lachlan Black were at Unit 1 of a residential block. The victims, Mark O'Callaghan and Tammy Lee MacKenzie occupied Unit 4, the entrance to which was directly opposite that of Unit 1. The appellant and Black, together with Ian Donovan the regular occupant of Unit 1, were consuming alcohol from early that day. 6 Sometime after 6 pm O'Callaghan entered Unit 1. Black grasped him in what was described as a "bear hug" and both Black and the appellant remonstrated with him, suggesting that in some way he had been involved in actions and interference concerning drug dealing in which they had an interest. They commenced to beat O'Callaghan with their fists. 7 Another man (Arens) entered the unit and called on them to stop. They did not desist and the appellant armed himself with a cricket bat. He ignored a plea from Arens to give the bat to him. O'Callaghan had put his hands about his head for his protection and the appellant jabbed him in the stomach with the bat which caused O'Callaghan to move his hands and the appellant then began to strike him on the head with the bat causing an apparent loss of consciousness. 8 O'Callaghan slumped to the floor and the appellant dragged him into Unit 4 where he deposited him into a lounge chair and then resumed striking him with the bat. Ms MacKenzie was in the unit at the time. She was crying and asking the appellant (and Black who had joined him) to cease. A witness to these events (Ms Rawhiti) had come from Unit 8 with others to see what was causing the commotion and she counted 15 blows which the appellant rained on O'Callaghan with the bat. Thereafter Ms Rawhiti saw the appellant adjust the blinds in Unit 4 and switch off the lights. 9 She returned to Unit 8 where a number of people including the appellant then gathered. Some marijuana was smoked. Among other things the appellant said, "Come on, give me a cone, I need it to do this shit, I need to kill Tamika. Justin, come down and help us." (His Honour found that Justin was a Justin Brennan, who was acquitted of any complicity in the murders). 10 Next the appellant, Ms Rawhiti and some others who had been in Unit 8 departed in a car driven by Mr Fogarty, who was apparently the regular occupant of Unit 8. The excursion included obtaining some goods from a fast food outlet. While on the journey the appellant was heard to say on numerous occasions, "I killed Mark, Mark is dead." After returning to the unit block the appellant entered Unit 1 and Ms Rawhiti noticed Ms MacKenzie in there and that her face appeared bloodied. 11 Given the circumstance that many, if not all, of the witnesses were partaking of alcohol or marijuana or both, it is unsurprising that his Honour chronicled their statements rather than attempting to extract therefrom a precise chronology. It is clear, however, that the appellant expressed his motive for intending to kill Ms MacKenzie to be preventing her from reporting the murder of O'Callaghan to the police. His Honour expressly found that the appellant harboured this motive. 12 In Unit 1 the appellant had armed himself with a filleting knife which he obtained from the kitchen. He threatened Ms MacKenzie with the knife and ordered her to take off her clothes. She complied. He then told her to put them back on and she did so. Thereafter she was dragged from the unit into a garage and while she was on the ground in there, the appellant and Black took hold of her. Black was described as ramming her head against a door after which he and the appellant dragged her further to the inside of a meter room. In that room Ms MacKenzie died as a result of multiple blunt force injuries and knife wounds. It was the appellant who was responsible for the stabbing and it was noted that the broken blade of the knife which he used was found nearby when the body was later located. Black had been wielding a piece of timber which was also found nearby and noticed to be in a bloodstained state. It was a powerful demonstration of the appellant's callousness that on the following morning 29 May in reference to killing O'Callaghan he was heard to remark, "I hit him for six. Don Bradman would have been proud of me." His Honour's remarks on sentence recite considerable detail from the content of the witness statements including other quotations of what the appellant was heard to say from time to time. I will not pause to recapitulate all this material which was to similar effect to the foregoing. 13 Police came to the unit on 29 May in response to a number of telephone calls to the 000 service. O'Callaghan's body was still on the lounge in Unit 4 and MacKenzie's body was in the meter room. 14 As is apparent from the above descriptions Black was a joint participant with the appellant in the killing. He was also charged with the murders and was found not guilty by reason of mental illness. 15 The first ground of appeal asserted that each of the sentences was manifestly excessive. His Honour referred to the appellant's motive for killing O'Callaghan: "Although the Crown does not view the killing of Mr O'Callaghan as being related to drug-dealing activities, in my view it is the only hypothesis which appears from the evidence as a motive for the killing of Mr O'Callaghan." 16 Whether the consumption of alcohol and illicit drugs by the appellant prior to the commission of the murders might be a matter of mitigation is debatable, however, his Honour made a significant finding in those regards, namely: "Whilst the consumption of alcohol and of illegal substances, namely cannabis, may have contributed to the prisoner's participation in the killings, I am not persuaded, even on the balance of probabilities, that his acts are explicable solely in terms of that consumption of even substantially in terms of it." 17 The total term which his Honour would have imposed for the murder of O'Callaghan was stated to be 30 years, but he reduced this to 26 years for this reason: "As to the head sentence to be imposed and dealing firstly with count 1 relating to Mr O'Callaghan, subject to an appropriate discount for plea of guilty I will impose a sentence of thirty years imprisonment. Whilst twenty per cent discount for such a plea might otherwise be regarded as appropriate, if applied in this case it would have, in my view, the effect of bringing the sentence below the level warranted by the objective circumstances of the offence after taking into consideration all other relevant circumstances. Accordingly, I propose to allow a discount of four years for the plea of guilty which represents a discount of just over thirteen per cent." 18 In reaching that conclusion his Honour found that the murder of O'Callaghan by the appellant did not fall into the category of a worst case nor were the statutory requirements of s 61 (1) of the Crimes (Sentencing Procedure) Act 1999 met so as to mandate imposition of a life sentence. 19 The submission by senior counsel for the appellant was that an "unpremeditated murder" did not justify a 30 year sentence in the circumstances. 20 At the sentencing hearing the Crown Prosecutor had accepted that the appellant had joined in an attack on O'Callaghan which was initiated by Black. Potential mitigation by reason of this circumstance, even if it were thought appropriate, was counterbalanced by the possession of the motive harboured by the appellant which, although not precisely defined, was related to O'Callaghan's asserted interference in his drug dealing activity. It was found that he harboured a specific intention to kill. Pleas by the victim for the appellant to desist from his attack were ignored. 21 The brutality applied by the appellant was extreme and, although there have been expressions of remorse later, the appellant's statements at the time, one of which I have quoted, demonstrated a high degree of callousness. 22 Little relevant guidance can be derived from attempting to compare the commission of one murder with any other and caution needs to be exercised in looking at statistics, but it can be observed that in a survey of 203 cases of murder in a schedule attached to the appellant's written submissions, 49 offenders who received determinate sentences had total terms exceeding 20 years imposed. This survey included "all offenders" and the terms would have been imposed after any "discounts" such as recognizing pleas of guilty. Nineteen of the 203 offenders received life terms. 23 It was not submitted that the learned sentencing judge took into account some matter which he should not have nor that he omitted to take into account some matter which he should. I am unpersuaded that his assessment lay outside the discretionary range nor outside any established sentencing pattern. It may be, as counsel observed, that the overall sentence in this case is the longest (excluding life terms) which his researches were able to detect but the observation ignores the critical circumstance that any pattern must take account of the life sentences. The submission that the individual sentence imposed upon the first count was excessive should be rejected. 24 The written submissions on behalf of the appellant canvassed a number of cases in which sentences for murder had been imposed. Subject to the references I will later make, there is nothing to be gained by summarizing the invariably distinguishable circumstances of offences and offenders which led to impositions different from those under present challenge. 25 In the course of the sentencing hearing the Crown Prosecutor put to his Honour: "The first one was very close to the worst category. The second one even closer to the worst category to murder, in the Crown's respectful submission, due to the protracted nature of the killings, in both cases; the fact that both killings were done by the prisoner with another assailant and the begging for mercy that both victims did during the course of the savage and horrific course of events which led to their deaths." 26 It is observed that in a later exchange when the issue of cumulation for the second killing was under discussion, the following occurred: "HIS HONOUR: …we know what the suggested motivation for is so far as Ms Mackenzie is concerned. CROWN PROSECUTOR: Yes, a completely different motivation which would call for a very substantial measure of accumulation in the Crown's submission because it was a killing of a very different character which took place. HIS HONOUR: When you say that does that mean the Crown does not press upon me the maximum? CROWN PROSECUTOR: I am instructed that it is a policy of the Director of Public Prosecutions not to press that in any case." 27 Of course it is not disputed that it was for his Honour to make findings and he was not bound by any Crown concession. He gave express consideration both to the concept of the worst case category and to the statutory provision abovementioned. It provides: " Mandatory life sentences for certain offences 61 (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 28 The relevant finding was in these terms: "A sentence of life imprisonment under that section is required if the culpability is so extreme that the community interest and the combined effect of the community interest in one or more of retribution, punishment, community protection or deterrence can only be met, and I stress the word only, by a sentence of life imprisonment. In my view the level of culpability having regard to the circumstances surrounding and causally connected with the murder of Ms MacKenzie has reached this level. The circumstances of her death also meets the worst category case test at common law." 29 As above noted, an indeterminate sentence was not imposed for the second murder but a term of 35 years imprisonment. His Honour's reasons were stated thus: "An indeterminate sentence as to Ms MacKenzie's murder is justified leaving aside, as I have already indicated, consideration of the plea of guilty and the relative youth of the prisoner in combination. I have come to the conclusion, however, that, having regard to those factors in combination, an indeterminate sentence ought not to be imposed for the murder of Ms MacKenzie either but that a lengthy determinate sentence is justified." 30 In R v Lo [2003] NSWCCA 313 an offender whose crime of murder (a "contract killing") was found by the sentencing judge to meet the requirements of s 61 (1) was nevertheless given a determinate sentence, the departure from the mandatory life term being based upon mitigation arising from a plea of guilty and assistance to authority. In the present instance, as above noted, the factors were a plea of guilty and the youth of the appellant. In Lo O'Keefe J with the concurrence of Spigelman CJ said: "31 Where an indeterminate sentence would otherwise be appropriate, a plea of guilty or assistance to the authorities or a combination of the two may in an appropriate case have the effect of reducing an indeterminate sentence to a finite sentence, that is a sentence for a term of years. Whether a plea of guilty or assistance or both or any other appropriate factors will have such an effect will depend on the particular circumstances of each case. 32 When confronted with the problem dealt with in the preceding paragraph, Senior Counsel for the applicant submitted that the considerations which may lead to an indeterminate sentence that would otherwise have been imposed being reduced to a sentence for a finite term of years, should be looked at for a second time, once the decision had been made to effect such reduction. In my opinion this submission fails. Once the factors of the pleas of guilty and the assistance given to the authorities have brought about a reduction in the sentence their force is spent. To allow them to be used again would be to allow a 'double dipping' in relation to them. That does not accord with notions of justice. Furthermore, there is no warrant in the statutory regime for such a process, nor any warrant in the common law for it." 31 In a separate judgment Greg James J said: "48 I consider that in fixing the length of that determinate sentence passed in lieu of a life sentence in these circumstances it would still be appropriate to have regard to the plea of guilty and any assistance that had been forthcoming. 49 But in doing so, it would be important to avoid the double dipping to which O'Keefe J refers. If the sentencing process is not conducted in discrete stages, in my view, that end should be capable of being attained." 32 Although the qualification in the second paragraph just quoted is to be observed, his Honour appears to be dissenting from the view that factors which reduce what would otherwise be to a life sentence to a specific term of years are thereby spent of force. The view of the majority must prevail. 33 In expressing his assessment of penalty for the murder of Ms MacKenzie his Honour stated: "As to the second count involving the murder of Ms MacKenzie, I decline to impose a penalty of life imprisonment because of, as I have already indicated, the plea of guilty together with a consideration of the prisoner's youth. I propose, in respect of the second count of the indictment involving Ms MacKenzie, a sentence of thirty-five years imprisonment with no discount for pleas of guilty in light of the decision in Lo's case. I will set a non-parole period of twenty six and half years as to that count." 34 The approach which his Honour applied conforms with authority and no error has been demonstrated. 35 Ground 2 asserted error in his Honour's direction that the sentence for the second murder commence after 12 years have been served in respect of the first murder. 36 The remarks on sentence show that his Honour paid express attention to the relevant issue. He said: "Turning now to questions of totality and of concurrence or accumulation in whole or in part. The principle of totality has some application in so far as these offences were part of one course of criminal conduct being connected in point of time and other circumstances. In terms of motive, however, there is a clear distinction. Further, in my view making these sentences wholly concurrent would result in an overall sentence below that required by an assessment of the totality of criminality disclosed by the evidence. Accordingly, I propose that the sentences should be partly concurrent, the sentence on the second count commencing twelve years after the commencement of the sentence imposed on the first count which is to commence from date of arrest, 29 May 2002." 37 Although, as his Honour found, the two killings took place as part of one course of criminal conduct, the correctness of which finding was not challenged by the Crown, it is important to recognize that his Honour did not find that the two deaths arose out of a single eruption into violence as in some circumstances may be the case. There was a significant separation in that the attack on O'Callaghan was motivated by something relating to drug dealing and his Honour found it was accompanied by some lack of premeditation in contrast with the express motivation and intention to remove Ms MacKenzie as a potential source of a report to police. The existence of the connection between the two crimes is obvious but they were neither contemporaneous in any sense, nor were they a result of some unity of criminal behaviour. The second murder was an independent crime which sought, however unlikely it was to succeed, to remove the appellant from some risk of retribution for what he had done to O'Callaghan. 38 In a submission comprehending challenge to individual sentences as well as the combined result, senior counsel for the appellant drew attention to the several references throughout the remarks on sentence to the appellant's substance ingestion and his state of intoxication and he submitted that the reduction thereby of the appellant's capacity for right judgment ought to have mitigated his Honour's assessment. The references to affectation and intoxication are compatible with what his Honour had said and I have above quoted, namely that although consumption may have contributed to the appellant's participation in the crime, it was not substantial. 39 On both the issues of total term and the direction for accumulation, counsel referred to R v Folbigg [2005] 152 A Crim R 35. In that case the offender had been convicted by a jury on four counts of murder (counts 2 to 5) and one count of manslaughter (count 1). In the judgment of this Court, Sully J (Dunford and Hidden JJ concurring) stated: "…That some cumulation was warranted is, in my opinion, plainly correct. But the structuring of the sentences passed in connection with counts 4 and 5 entails that the sentence on count 4, a heavy sentence in any event, does not commence until 7 years after the commencement of the sentence on count 3, and 10 years after the commencement of the sentence on count 1; while the sentence on count 5, an even heavier sentence, does not commence until 8 years after the commencement of the sentence on count 4, and 18 years after the commencement of the sentence on count 1. These are quite extraordinary cumulations. The prospect that they offer the appellant is so crushingly discouraging as to put at risk any incentive that she might have to apply herself to her rehabilitation. That seems to me to indicate, without more, error." 40 Sully J added that a head sentence (as the total effectively was) of 40 years with a non parole period of 30 years was so "crushing" as to manifest covert error. Although that offender was liable on each of four counts to a sentence of life imprisonment, it is self evident that the sentencing judge had determined that such sentences not be imposed. Sully J agreed with his reasons for so concluding. It scarcely needs to be said that if one were to engage in comparative descriptions, a life sentence would be more "crushing" than any determinate sentence, at least if it is scheduled to expire before the attainment of anticipated life expectancy. 41 It was observed in Folbigg that the situation of the individual offender was such as to lead to prediction that she may have been 66 to 76 years of age before she might be paroled. The appellant was born on 13 December 1981. 42 Courts are not unfamiliar with descriptions of sentences as "crushing" but that does not articulate some applicable test. A life sentence would presumably fall within the ambit of that description but the legitimacy of availability of a life sentence is not open to challenge. Whilst the language in Folbigg is general in terms it does not purport to, nor could it, detract from the well established principle that justice is individual and each offence and each offender requires assessment. The judgment in that case was, of course, delivered after his Honour's impositions in this instance but it did not reveal any principle demonstrating that there had been error in the assessment of sentences received by the appellant. 43 His Honour recorded his consideration of subjective matters advanced on behalf of the appellant but necessarily had to implement his findings about the objective seriousness of these crimes. Included in his remarks there is a poignant expression: "I find that these killings were perpetrated with extreme brutality in which the prisoner took at least an equal part with Mr Black. Indeed the evidence supports the conclusion that he took the leading part. The victims were, to all intents and purposes, defenceless and each of them was pleading for his and her life before and during the acts causing death. The image conjured by the evidence of Ms MacKenzie being dragged screaming in terror to be slaughtered in the meter room in particular raises for consideration whether the acts causing death exhibited by the evidence here, together with the other circumstances relating to her death, fall into the worst case classification at common law and the provisions of s 61 of the Crime (Sentencing Procedure) Act ." 44 I would reject ground 2. 45 Grounds 3 and 4 relate to the specification of the non parole periods. His Honour made express reference to s 44 of the sentencing legislation, which it is not necessary to recite. He expressly declined to find special circumstances so as to vary the proportion of non parole period by reducing it below 75 percent of total term. That some of the circumstances may have sufficed to enable such a finding to be made did not oblige his Honour to make it and he committed no error in this regard. 46 The Crown did not dispute the arithmetical error raised by ground 4 which shows that, if, as is apparent, his Honour intended to apply the proportion mentioned in the statute then the non parole period in respect of the sentence for the second murder should have been 26 years 3 months rather than 26 years 6 months. This will cease to be of significance if the adjustment which I will propose is implemented. 47 A challenge is directed to the consequence that, as a result of the direction for cumulation, the overall period to be served before eligibility for consideration for parole represents a little over 81 percent of the total term. The statutory provision does not require the giving of reasons for setting a non parole period which exceeds 75 percent of the total term but it has been said to be expected that they will be provided as, especially when cumulation has been ordered, the omission may be regarded as a demonstration of error: R v Dunn [2006] NSWCCA 12. All the indications are that his Honour did not intend to depart from the 75 percent ratio and the consequences after cumulation were overlooked. I consider that there should be an adjustment to achieve this in respect of the total term as well as the individual sentences. I perceive no reason for a greater than 75 percent ratio. 48 In a practical way an appropriate outcome can be achieved by recognizing the result of the cumulation as a special circumstance itself and reducing the non parole period in respect of the second count so as to establish an eligibility date for parole at the point of 75 percent of the overall term. 49 I propose the following orders:

Ta'ala v R

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