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8
Supreme Court 26 November 1999

REGINA v. PETRINOVIC

[1999] NSWSC 1131

Homicide
CRIMINAL LAW SENTENCING MURDER LIFE SENTENCE COMMON LAW PRINCIPLES NOT APPLICABLE DISCRETION TO IMPOSE LESSER SENTENCE

Citation: Regina v Petrinovic [1999] NSWSC 1131
Court: Supreme Court of New South Wales (Criminal Division)
Date: 26 November 1999
Judge(s): Greg James J

Background

The prisoner, a 39-year-old man with an extensive criminal history spanning virtually his entire adult life, pleaded guilty to the murder of Ian Hagarty at Lurnea on 26 October 1997. The killing occurred during an armed robbery at a bottle shop. The prisoner entered armed with a loaded revolver, a struggle ensued with the victim, and two shots were fired. One struck the victim in the neck and proved fatal.

The Crown proceeded on the basis of felony murder under s 18 of the Crimes Act 1900, meaning the murder arose from the commission of a serious criminal act (the armed robbery) rather than from a separately proven intention to kill or cause grievous bodily harm. The Crown did not seek to rely on any intentional state of mind for murder beyond that required for felony murder.

The prisoner's background was deeply troubling. He had spent almost all of his adult life, and much of his childhood from age 10 onwards, in institutions or gaol. His prior record included numerous armed robberies committed while on parole or as an escapee. The present offence was committed just four and a half months after his release from custody and while still on parole.

  • Whether the criteria for a mandatory life sentence under s 431B of the Crimes Act 1900 were satisfied, and whether common law sentencing principles were relevant to that threshold question
  • If the mandatory life sentence threshold was not met, what sentence was appropriate having regard to the objective and subjective circumstances of the offence and the prisoner's criminal history
  • How to treat victim impact statements in the sentencing exercise
  • The relevance of the prisoner's prior record, including offences committed while on parole or as an escapee, to the exercise of sentencing discretion

Decision

Greg James J considered first whether a mandatory life sentence was warranted under s 431B of the Crimes Act 1900. His Honour held that the criteria for a mandatory life sentence are assessed according to the statutory framework alone, and that common law sentencing principles do not apply at that threshold stage. The question of whether to impose a life sentence is determined by the statute, not by general sentencing doctrine.

His Honour concluded that the mandatory life sentence threshold was not met in this case. Once that discretion arose, the ordinary common law sentencing principles became applicable to the task of determining the appropriate finite sentence.

Turning to the appropriate sentence, the court weighed heavily the prisoner's appalling prior record, his commission of the offence while on parole, and the objective gravity of the crime. The victim impact material was considered in accordance with s 23C of the Criminal Procedure Act 1986 and the principles in Regina v Previtera (1998) 94 A Crim R 76. Mitigating factors, including the guilty plea and the prisoner's institutional upbringing from a young age, were also taken into account.

The court imposed a sentence of penal servitude for 27 years, with a minimum term of 20 years, reflecting the very serious nature of the offence, the prisoner's extensive and relevant prior criminal history, and the limited time he had spent at liberty outside institutions.

Orders Made

  • Sentenced to penal servitude for 27 years
  • Minimum term of 20 years

Key Takeaways

  • Under s 431B of the Crimes Act 1900, the threshold question of whether a mandatory life sentence must be imposed is governed by the statute alone; common law sentencing principles have no role at that stage and are engaged only once the court determines that a discretionary (finite) sentence is appropriate instead.
  • A conviction for felony murder under s 18 of the Crimes Act 1900 does not require proof of an intention to kill or cause grievous bodily harm; it arises from the commission of a serious criminal act that results in death.
  • The Supreme Court treated victim impact statements in accordance with s 23C of the Criminal Procedure Act 1986 and the Previtera principles, confining their use to the purposes recognised by those authorities.
  • An extensive prior record of offending committed while on parole or as an escapee is a significant aggravating factor at sentencing, as is the commission of the index offence itself while on parole.
  • A guilty plea, together with evidence of an institutional upbringing from childhood, may operate as mitigating factors, though their weight will be assessed against the totality of the circumstances, including the objective gravity of the offence and the prisoner's criminal antecedents.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 18 and 431B
- Criminal Procedure Act 1986 (NSW), s 23C
- Sentencing Act 1989 (NSW)
- Crimes (Life Sentences) Amendment Act 1989 (NSW)
- Drugs Misuse and Trafficking Act 1985 (NSW)
- Sentencing (General) Regulation 1996 (NSW)

Cases:
- Regina v Previtera (1998) 94 A Crim R 76
- Coleman (1990) 47 A Crim R 306
- Petrinovic (CCA, unreported, 18 September 1990)
- Henry & Ors [1999] NSWCCA 111
- Ibbs (1987) 163 CLR 447
- Veen (No 1) (1979) 143 CLR 458
- Veen (No 2) (1987-88) 164 CLR 465
- JB; RJH [1999] NSWCCA 93
- Salameh [1999] NSWCCA 300
- Pearce (1998) 156 ALR 684
- Bugmy (1990) 169 CLR 525
- Privett & Privett [1999] NSWSC 1076
- Various other unreported Court of Criminal Appeal decisions