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Court of Criminal Appeal 22 April 1999

REGINA v STEPHENS

[1999] NSWCCA 80

Homicide
CRIMINAL LAW MURDER SENTENCING WHETHER SENTENCE WAS EXCESSIVE

Citation: [1999] NSWCCA 80
Court: New South Wales Court of Criminal Appeal
Date: 22 April 1999
Judge(s): Sheller JA; Studdert J; Smart AJ

Background

The appellant had pleaded guilty in 1987 to murdering his wife at Dungay, near Murwillumbah, on 18 December 1986. He had administered cyanide to her in a capsule, allowed her to die, and then buried her body in the backyard of the family farm. McInerney J sentenced him to penal servitude for life, commencing 4 January 1987.

In 1997, the appellant applied under the Sentencing Act 1989 for re-determination of that life sentence into a minimum term and an additional term. McInerney J granted the application, which the Crown did not oppose, and imposed a total sentence of 22 years' penal servitude. That sentence comprised a minimum term of 16 years from 4 January 1987 and an additional term of 6 years, making the appellant eligible for parole on 4 January 2003.

The appellant then sought leave to appeal to the Court of Criminal Appeal out of time, contending the re-determined sentence was excessive.

  • Whether McInerney J erred in finding the appellant had shown no contrition for the offence
  • Whether insufficient weight was given to the guilty plea
  • Whether insufficient weight was given to evidence of the appellant's rehabilitation
  • Whether the total sentence of 22 years was manifestly excessive

Decision

The court found no error in McInerney J's assessment of contrition. The sentencing judge had noted that the appellant did not give evidence on the re-determination, leaving uncontested the inference that he had yet to fully confront the gravity of his conduct. The appellant had, in 1987, characterised the killing as mere recklessness and attempted to attribute the breakdown of the marriage to the deceased. The Court of Criminal Appeal held that the failure to give evidence at the re-determination hearing reinforced, rather than undermined, that conclusion.

On the guilty plea, the court accepted that the plea was entered in circumstances of overwhelming evidence. Cyanide traces had been found in the deceased's organs and near her buried body, the appellant had been the last person to see her alive, and he had lied repeatedly to police and family. McInerney J had factored in the utilitarian value of the plea but treated it as warranting only minimal weight, given it amounted to little more than recognition of an inevitable outcome. The Court of Criminal Appeal found no error in that approach.

The court also dismissed the rehabilitation ground. While some evidence of institutional progress was available, it was insufficient to displace the other findings about contrition and the objective gravity of the offence. Sentence statistics relied upon by counsel for the appellant were found not to demonstrate that the sentence fell outside the appropriate range.

The court granted leave to appeal out of time, noting that the Crown offered only token opposition to that application. However, having found no error in the re-determination on any of the grounds advanced, the court dismissed the appeal.

Orders Made

  • Leave granted to the appellant to appeal out of time
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a failure by an applicant to give evidence at a re-determination hearing under s 13A of the Sentencing Act 1989 can properly support an inference that the applicant has not genuinely confronted the gravity of the offence.
  • Minimal weight for a guilty plea is appropriate where the evidence against the accused was so overwhelming that the plea represented little more than an acknowledgment of the inevitable, even if counsel argued that most defendants in the relevant period pleaded not guilty.
  • Under s 13A(9) of the Sentencing Act 1989, the Supreme Court on re-determination must consider factors including post-sentence rehabilitation reports, community safety, and the offender's age, but those factors operate in the context of the objective seriousness of the original offence.
  • Sentence statistics, while relevant, do not by themselves establish that a sentence was manifestly excessive; the statistics must affirmatively demonstrate that the sentence fell outside the appropriate range.
  • No error was established in declining to characterise a deeply premeditated poisoning as mere recklessness, where the sentencing judge found that characterisation had itself been advanced disingenuously at the original sentencing.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), ss 13A(2), 13A(9), 13A(12)

Cases cited: No specific cases were cited in the provided judgment text.