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Supreme Court 21 December 2000

R v Valera

[2000] NSWSC 1220

Homicide
CRIMINAL LAW SENTENCES FOR TWO MURDERS

Citation: R v Valera [2000] NSWSC 1220
Court: Supreme Court of New South Wales
Date: 21 December 2000
Judge(s): Studdert J

Background

The prisoner was tried in Wollongong on two counts of murder. He had initially entered pleas of guilty to manslaughter, which the Crown rejected, and the trial proceeded before a jury. On 8 August 2000, the jury returned verdicts of guilty on both counts.

The two murders were committed within a fortnight of each other in June 1998. The victims were a 59-year-old man living alone in Albion Park and a 68-year-old former Mayor of Wollongong. Both crimes involved extreme and sustained violence, and the circumstances of the first murder in particular were described by Studdert J as gruesome in the extreme, involving post-mortem mutilation and deliberate staging of the crime scene.

Sentencing submissions were heard in September and October 2000. Studdert J delayed passing sentence until the Court of Criminal Appeal delivered its judgment in R v Harris, which resolved a contested question about the court's power to set a non-parole period when imposing life imprisonment for murder.

  • Whether each murder fell within the "worst category" of cases at common law, such that a life sentence was warranted
  • How the court should weigh subjective circumstances, including the prisoner's background, against the extreme objective gravity of the offences
  • Whether, under the then-current Crimes (Sentencing Procedure) Act, the Supreme Court had jurisdiction to set a non-parole period when imposing a sentence of life imprisonment for murder
  • What effect, if any, section 61 of the Crimes (Sentencing Procedure) Act had on the operation of common law principles governing the "worst category" of murder

Decision

Studdert J concluded that both murders fell within the worst category of cases, warranting sentences of life imprisonment. The objective circumstances of each offence were of extreme gravity: both involved sustained and lethal violence against elderly men living alone, and the first murder involved post-mortem mutilation and ritualistic staging. The judge found that no combination of less severe sentences could adequately reflect the criminality involved.

The court considered the prisoner's subjective circumstances, including matters relevant to his background. However, consistent with established authority on worst-category cases, those factors were insufficient to displace the conclusion that life sentences were appropriate for both murders.

On the jurisdictional question, Studdert J followed the Court of Criminal Appeal's decision in R v Harris, delivered the day before sentencing. That decision confirmed unequivocally that the Supreme Court has no power under the current legislation to fix a non-parole period in respect of a life sentence imposed for murder. Studdert J noted he had deliberately deferred sentencing until Harris was decided, precisely because that issue had been contested.

Studdert J expressly recorded that, had the power existed, he would have exercised it to allow for the possibility of the prisoner's ultimate release on parole. He echoed the Court of Criminal Appeal's observation in Harris that the NSW regime was harsh and anomalous compared with other Australian jurisdictions, all of which either permit or require the setting of a non-parole period for life sentences.

Orders Made

  • The prisoner was sentenced to imprisonment for life for the murder of the first victim, commencing 30 September 1998.
  • The prisoner was sentenced to imprisonment for life for the murder of the second victim, also commencing 30 September 1998.
  • The two life sentences were imposed concurrently.
  • No non-parole period was set for either sentence, on the ground that the court lacked jurisdiction to do so.

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act as it stood in 2000, the Supreme Court of New South Wales had no jurisdiction to fix a non-parole period when imposing a sentence of life imprisonment for murder, as confirmed by the Court of Criminal Appeal in R v Harris.
  • Where an offence falls within the common law "worst category" of murder, a life sentence is warranted even after consideration of the offender's subjective circumstances, which cannot override the extreme objective gravity of the conduct.
  • Studdert J expressly stated that he would have set a non-parole period had he possessed the power to do so, reflecting the view that the then-current NSW regime was unduly harsh.
  • NSW stood apart from all other Australian jurisdictions, including the Commonwealth and the ACT, in denying sentencing courts any power to set a non-parole period for life sentences imposed for murder.
  • The Court of Criminal Appeal in Harris noted the regime was "harsh and discriminatory" and called for legislative review, observations with which Studdert J expressly agreed.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW), particularly s 61
- Commonwealth Crimes Act

Cases
- R v Harris (2000) 111 A Crim R 415; [2000] NSWCCA 469
- Bugmy v The Queen (1990) 169 CLR 625
- Veen v The Queen (No. 1) (1979) 143 CLR 458
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- R v Bell (1985) 2 NSWLR 466
- R v Previtera 94 A Crim R 76
- R v Bollen 99 A Crim R 510
- R v Kalajzich (1997) 94 A Crim R 41
- R v Fernando [1999] NSWCCA 66
- R v Dang [1999] NSWCCA 42
- R v Robinson [2000] NSWSC 972
- R v Park (unreported, Sperling J, 3 August 2000)
- R v De Gruchy (unreported, Grove J, 17 December 1998)
- R v Garforth (unreported, NSWCCA, 23 May 1994)
- R v Leonard (unreported, NSWCCA, 7 December 1998)
- R v Street (unreported, NSWCCA, 17 December 1996)
- R v Trotter (unreported, Hunt CJ at CL, 10 August 1993)
- R v Twala (unreported, NSWCCA, 4 November 1994)
- R v Petroff (unreported, Hunt CJ at CL, 12 November 1991)
- R v Steel (unreported, Hunt CJ at CL, 12 May 1994)