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2
Supreme Court 3 November 2000

R v Naismith

[2000] NSWSC 1024

Homicide
CRIMINAL LAW SENTENCING DOUBLE MURDER

Citation: R v Naismith [2000] NSWSC 1024
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 November 2000
Judge(s): Dunford J

Background

The prisoner was convicted by jury of the murders of two men at Charlestown on 16 August 1999. All parties, including the prisoner and both deceased, were involved in the cannabis trade in the Newcastle area. The prisoner believed that one of the deceased had organised a drug deal in which he and the other deceased had each been defrauded of approximately $13,000 in late 1998.

On the day of the killings, the prisoner arranged for both men to attend his premises and for his partner and friends to be absent. He beat the first victim to death with a borrowed baseball bat in his garage, then shot the second victim in the head when he arrived at the house shortly afterward. A fourth man (referred to as "the accessory") was present and later assisted the prisoner in concealing the deaths: the bodies were moved, buried, and then burned at Stockton Bight over the following two nights.

The prisoner denied involvement at trial and presented an elaborate alternative account attributing the deaths to an unmasked gunman. The jury rejected that account, as did Dunford J at sentencing.

  • Whether both murders were premeditated and planned, affecting the objective seriousness of the offending
  • What sentence was appropriate for double murder, having regard to premeditation, the manner of killing, and the destruction of the victims' bodies
  • Whether the sentences imposed on the accessory (for accessory after the fact to murder) were relevant to sentencing the prisoner
  • Whether concurrent or cumulative sentences were appropriate given the two separate murders occurred in close temporal and motivational proximity
  • The application of the totality principle where concurrent sentences are imposed

Decision

Dunford J found that both murders were premeditated and planned. The prisoner had borrowed the murder weapon in advance, acquired and modified a firearm, tested it beforehand, arranged for witnesses to be absent, and arranged for both victims to attend his premises. The destruction of the bodies by burial and burning, denying the victims a decent burial, was treated as an aggravating circumstance.

His Honour rejected the submission that the sentences imposed on the accessory were relevant to the prisoner's sentencing. Dunford J reasoned that no meaningful comparison could be drawn between the objective gravity of committing two murders and being an accessory after the fact. The accessory had also pleaded guilty, assisted police extensively, and gave evidence for the Crown, all of which attracted significant discounts unavailable to the prisoner.

Concurrent sentences were considered appropriate given the two killings occurred in close proximity in time and arose from a related motivation. Dunford J nonetheless acknowledged that two lives had been taken and applied the totality principle in calibrating the overall sentence. The prisoner's complete denial and contrived trial account were not treated as mitigating factors.

Victim Impact Statements were read, and Dunford J expressed sympathy to both families, but found the statements did not alter the sentences that would otherwise be imposed.

Orders Made

  • On each count of murder: imprisonment for 33 years, to be served concurrently
  • Sentences deemed to have commenced on 25 August 1999
  • Non-parole period fixed at 25 years
  • Earliest parole eligibility date: 24 August 2024
  • A matter listed on the Form 1 was taken into account in relation to the first count

Key Takeaways

  • Premeditation of a high degree, including advance acquisition of weapons, removal of potential witnesses, and concealment of evidence, significantly affects the objective seriousness of murder for sentencing purposes.
  • Where two murders occur in close temporal and motivational proximity, concurrent rather than cumulative sentences may be appropriate, though the sentencing court must still apply the totality principle and acknowledge that two separate lives were taken.
  • The sentence imposed on an accessory after the fact is not a relevant comparator when sentencing the principal offender for murder. The gap in objective criminality between committing murder and assisting in concealing it, compounded by the accessory's cooperation and guilty plea, makes comparison inappropriate.
  • Destruction of a victim's body by burning was treated as a circumstance that warranted separate denunciatory weight, described by the court as denying the deceased a decent burial.
  • A prisoner's complete denial of guilt and fabrication of an elaborate alternative narrative at trial carry no mitigating value at sentencing.

Legislation and Cases Referenced

Legislation: None cited in the judgment text or metadata.

Cases: None cited in the judgment text or metadata.

Note: The judgment refers to a Form 1 procedure (the NSW practice of taking additional charges into account on sentence without recording a conviction), though no specific statutory provision is named in the text provided.