249 CLR 571
Elturk v R [2014] NSWCCA 61
Kentwell v The Queen [2014] HCA 37
313 ALR 451
Muldrock v The Queen [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
249 CLR 571
Elturk v R [2014] NSWCCA 61
Kentwell v The Queen [2014] HCA 37313 ALR 451
Muldrock v The Queen [2011] HCA 39
Judgment (3 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2007/2129
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v Kirrlie Shane Wilson [2008] NSWSC 238
Date of Decision: 4 April 2008
Before: Howie J
File Number(s): 2007/2129
[2]
Judgment:
HOEBEN CJ at CL:
Offence and sentence
The applicant was sentenced by Howie J on 4 April 2008 for the offence of murder, for which he was found guilty by a jury on 22 November 2007.
The offence of murder contrary to s18(1) of the Crimes Act 1900 attracts a maximum penalty of imprisonment for life (s19A). It has a standard non-parole period of 20 years imprisonment pursuant to Div 1A of the Crimes (Sentencing Procedure) Act 1999.
Howie J imposed a sentence of imprisonment with a non-parole period of 20 years, commencing 19 May 2006 and expiring 18 May 2026, with a balance of term of 6 years and 6 months expiring 18 November 2032.
There were two co-offenders, Owen Frazer and William Spencer, who were each convicted of manslaughter. They were sentenced by Howie J as follows:
Frazer - Imprisonment with a non-parole period of 7½ years, with a balance of term of 3½ years.
Spencer - Imprisonment with a non-parole period of 9½ years, with a balance of term of 3½ years.
The applicant seeks an extension of time within which to seek leave to appeal from the sentence imposed by Howie J on the following ground of appeal:
Ground 1 - His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Application for extension of time
An application for extension of time for leave to appeal against sentence is determined by a consideration of what the interests of justice require in a particular case: Kentwell v The Queen [2014] HCA 37; 313 ALR 451. Relevant factors include the length of delay, the reasons for the delay and the prospects of success should an extension of time be granted.
"Muldrock error" has been conceded by the Crown. This leaves as the relevant issue in the proceedings whether, taking into account the full range of factors including events which have occurred since the imposition of sentence, the Court in the re-exercise of the sentencing discretion should find that a lesser sentence is warranted in law.
The reasons for delay in this case are explained by the extensive affidavit material, which has been filed. There has been no fault on the part of the applicant which has contributed to the delay. Although the extent of the delay is substantial (in excess of four years) I would grant an extension of time, given the concession which has been made as to Muldrock error.
Factual background
The deceased was a person engaged in trafficking in drugs. He had shortly before his death come into possession of a large amount of money as a result of an armed robbery committed by him. Spencer learned of this fact and determined to have the money stolen. For this purpose, he contacted the applicant and arranged to meet him outside the deceased's townhouse in Toronto where Spencer had been staying. Spencer was to use his key to allow the applicant into the premises. Earlier in the evening on which the robbery had been planned, the deceased was acting in a threatening manner and was brandishing a firearm. He was apparently affected by drugs. Spencer told the applicant of this incident and warned him to be armed.
On the evening of 10 January 2005, or in the early hours of the next morning, the applicant went to the home of an associate named Frazer and asked him to assist. Frazer agreed to go with the applicant to supply physical support in order to intimidate the deceased to hand over the money. The applicant asked his nephew, Sales, to drive him and Frazer to the deceased's premises, telling him that they were going to obtain drugs from the deceased.
Shortly before arriving at the town house, a meeting took place at Lake Munmorah. The applicant and Frazer were in a vehicle driven by Sales. Spencer was in another vehicle with his girlfriend. After a short discussion, they proceeded independently to the townhouse with the applicant in constant contact with Spencer by mobile phone. They met outside the premises at about 4am and Spencer let the applicant and Frazer inside. Spencer then left the immediate vicinity of the townhouse.
The two men confronted the deceased, during which two shots were fired from the pistol with which the applicant was armed. One struck the deceased in the forehead. The evidence was that the deceased was sitting on the side of his bed before he was shot. He bore injuries which indicated that he had been pistol whipped and had defensive injuries to his arms.
Immediately after the shooting, the applicant and Frazer left the premises and returned to the vehicle in which Sales was waiting. When they arrived there, the applicant apologised to Frazer for what had happened saying "I'm sorry Owen. I've fucked up. I'm so sorry". He repeated this several times.
During the investigation of the killing, police spoke to the applicant in a recorded interview. The applicant denied any involvement in the killing and gave a somewhat nonsensical account of his activity, intending the police to believe that he had been affected by drugs to such an extent that he had been in an hallucinatory state at the relevant time.
During the trial, the applicant gave evidence, as did Spencer and Frazer. Their evidence was to the effect that Spencer had set up a drug deal between the deceased and the applicant and that was why they went to his home in the early hours of the morning. It was the applicant's evidence that neither he nor Frazer had been armed when they entered the premises. The applicant said that the deceased had been paranoid and took offence at the presence of Frazer. He threatened the applicant with a weapon and a struggle ensued during which the firearm accidentally discharged.
His Honour found that it was the applicant who shot the deceased and that he had assaulted the deceased with the pistol shortly before it was fired. His Honour found that the applicant intended to kill the deceased when he fired the pistol. His Honour concluded that the applicant lost his temper with the deceased and as a result, fired the pistol.
The applicant was arrested in May 2006 and has been in custody since that date.
Sentence proceedings
His Honour set out the salient features of the offending as follows:
"12 This was an armed robbery that went wrong. The offender did not intend to kill the deceased when he went to the premises. However this was still a grave case of murder even though the killing was not planned. The activity leading up to the killing was seriously criminal, involving as it did a planned armed robbery of a person in his own home using a loaded firearm. I can only presume that the offender and Frazer were expecting to be paid for what they were to do. However they were hired to commit a robbery not a killing."
His Honour reviewed the applicant's subjective case. The applicant was aged 32 at the time of sentence. He had a relatively minor criminal record, dating from 1992 including some assaults and weapons offences. He had spent short periods of time in prison serving sentences. The applicant had been a user of amphetamines for a period but had given that up eight years before he was sentenced. He was, however, selling the drug as a means of earning some income at the time of the shooting.
Dr Westmore, the applicant and his elder brother gave evidence in the sentence proceedings. His Honour found the applicant's brother to be an impressive witness, who appeared quite distressed when speaking of the conditions under which the applicant was brought up.
The applicant was a person of Aboriginal descent. His Honour found that he lived in very deprived circumstances as a child and was subject to considerable violence inflicted upon him by his stepfather. Some of his siblings were taken into care but not the applicant. Thereafter, he took the full brunt of the violence in the home. The applicant completed his schooling until year 9 by correspondence. He then worked in the opal fields until leaving home at the age of 16. Since then he had worked in various manual positions.
The applicant had been in a relationship for seven years, as a result of which he had four children. The relationship ended because the applicant's partner was neglecting the children through drug use. His Honour concluded that there was little doubt that the applicant's background had left him with personality problems, but that it was to his considerable credit that he was able to overcome his use of drugs and largely avoid serious conflict with the law, especially insofar as offences of violence were concerned. His Honour noted that the applicant had recognised that he had problems with anger and had undertaken two courses while in custody to address that issue. His Honour found that his tendency to anger was relevant in the shooting of the deceased.
The applicant gave evidence, supported by documents, that after the shooting of the deceased he made efforts to improve his situation in life. By his own efforts he became involved in a company called "Active Industry Training" and underwent a six week course to obtain qualifications that he hoped would assist him to obtain employment. He completed that course and another one in November 2005 and obtained proficiency certificates in carpentry and construction. In February 2006 he obtained employment with Borg Manufacturing as a factory hand. He remained in that employment until his arrest in May 2006.
When sentenced, the applicant was working as a sweeper in the prison and had not been the subject of any disciplinary action. He expressed remorse for the killing and accepted that had he not been there, it would not have happened. He said that it had brought him to his senses about the life he was leading at the time. He said that he accepted the jury's verdict, even though he did not acknowledge that it was correct in that he still maintained the version that the shooting was accidental.
His Honour accepted that the applicant was unlikely to re-offend, insofar as the use of firearms was concerned, but that much would depend upon his situation when he was eventually released from prison. His Honour thought that he had shown signs of maturity and would no doubt continue to do so over the period of his incarceration. Other than that, his Honour was not able to reach a firm view about his prospects of rehabilitation, given the period that he must serve before he could be released.
His Honour assessed the objective seriousness of the offence at slightly higher than midrange. His Honour declined to make a finding of special circumstances.
Events which have occurred since the applicant was sentenced
The applicant has been in custody for 9 years. During that time, there have been only two breaches of gaol discipline. The first occurred in July 2009 when the applicant was charged with having a tattoo gun because he was found with sewing needles in his cell. The applicant's explanation was that he was using the needles and thread to repair his clothes.
The second incident occurred on 16 August 2009 when the applicant accepted cannabis from a female who visited him in gaol. He was apprehended taking it from her. He was charged with possessing a prohibited drug and introducing a prohibited drug into prison and was sentenced to imprisonment for 6 months and 9 months respectively, such sentences to be served concurrently. He also suffered a loss of privileges for 3 months.
Since those incidents, there have been no breaches of gaol discipline recorded against the applicant. On the contrary, he has received high assessments for co-operation and leadership from Corrective Services. He has completed various traineeships which will assist him in obtaining employment when he is released. The applicant is on the Aboriginal Inmate Delegate Committee at the Lithgow detention facility. The applicant is currently working as head spray painter in the automotive repair section of the gaol. He is about to undertake a Certificate 111 in Automotive Body Repair.
The applicant has completed the "Getting Smart" program while in custody and received favourable reports. Typical of those reports is the following which he received when half through that program:
"Inmate has now completed seven sessions of the Getting Smart program with six more sessions to completion; inmate's participation has been proactive, inmate to time completes all set tasks and activities, grasping session content and concepts. Kirrlie is a supportive member of the Getting Smart group, speaks with honest thoughts and feelings and has a strong commitment to the program's goals, aims and objectives."
While in prison the applicant has lost contact with his four children and other members of his family.
Applicant's submissions
The applicant submitted that he had a strong subjective case. He referred to the favourable assessment of him by the primary judge who (unlike this Court) had the advantage of seeing both him and his brother give evidence. The applicant noted that despite his deprived circumstances as a child, and the considerable violence which was inflicted upon him by this stepfather, he had with some qualifications been able to avoid serious offending until this incident.
The applicant submitted that his difficulties with controlling his temper were linked to issues arising from his deprived childhood and that this was relevant to his moral culpability for the offending (Elturk v R [2014] NSWCCA 61 at [32] - [34]). He submitted that full weight should be given to his deprived background when considering his moral culpability. In that regard, the applicant relied upon Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43] where the plurality (French CJ; Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) said:
"43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending."
The applicant relied upon the following favourable findings made by the primary judge in relation to his subjective case:
1. His criminal record prior to this offence was relatively minor.
2. Despite the personality problems caused by his background, he was able to overcome his use of drugs and largely avoid conflict with the law.
3. He had made efforts, after the offence and before his arrest, to improve his life by obtaining employment and completing a course.
4. He had recognised problems with anger and undertaken two courses while in custody to address this.
5. He had expressed remorse and accepted the jury's verdict, even though he maintained the shooting was accidental.
6. There was nothing to indicate that protection of the community was a current concern or would be in the future.
The applicant relied upon the favourable reports which he had received while in prison and that he had worked hard to complete as many courses as were available to him.
The applicant submitted that in a general sense, concepts of parity were also relevant to whether a lesser sentence was warranted in law. He submitted that although his co-offenders had been convicted of manslaughter, whereas he had been committed of murder, it was unfair that he had to serve twice as long in prison. He submitted that despite the practical difficulties associated with taking parity into account in such circumstances, it was clear that apart from the fact that he had done the actual shooting, the circumstances of his offending and those of his co-offenders were the same.
He submitted that he should be re-sentenced and that a lesser sentence was warranted in law.
Consideration
The applicant had a strong subjective case when originally sentenced and that case has become stronger over the last 9 years. Despite the lapse in 2009, the total effect of the reports on the applicant while in prison have been overwhelmingly positive. Most impressively, both while he was at liberty and during his incarceration, the applicant has been successful in removing himself from the drug taking milieu. Moreover, the effects of his profound childhood deprivation do not diminish with the passage of time and need to be fully taken into account when considering the application of s6(3) of the Criminal Appeal Act 1912.
That having been said, there remain a number of negative considerations which cannot be ignored. The objective seriousness of the offence was substantial involving the shooting of the deceased at close range after he had been pistol whipped. Although the applicant has expressed remorse for the killing, he has not expressed remorse for the robbery and has not in terms admitted that the killing occurred in the way found by the primary judge.
While the issue of personal deterrence may have reduced in significance with the passage of time, the principles of general deterrence and denunciation remain relevant and important. There remain two important guidelines, i.e. the maximum sentence of life imprisonment and the standard non-parole period of 20 years. Even allowing that there was no premeditation or planning in relation to the act of killing, it cannot be ignored that the applicant went to the deceased's home, expecting a confrontation, armed with a lethal weapon, accompanied by another man with the intention of robbing him.
Taking all those matters, both positive and negative into account, I have concluded that a lesser sentence is warranted in law and that the applicant should be re-sentenced accordingly.
The orders which I propose are as follows:
1. An extension of time within which to apply for leave to appeal against sentence is granted.
2. Leave to appeal against sentence is granted and the appeal is allowed.
3. The sentence imposed by Howie J on 4 April 2008 is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 16 years to commence on 19 May 2006 and to expire on 18 May 2022, with balance of term of 5 years and 4 months to expire 18 September 2027.
HALL J: I agree with the orders proposed by Hoeben CJ at CL.
GARLING: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 01 June 2015