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Supreme Court 20 July 2000

Regina v Serratore

[2000] NSWSC 696

HomicideDomestic & family violence
CRIMINAL PRACTICE & PROCEDURE SENTENCING MURDER RETRIAL DISCOUNT FOR ONEROUS BAIL CONDITIONS

Citation: Regina v Serratore [2000] NSWSC 696
Court: Supreme Court of New South Wales (Criminal Division)
Date: 20 July 2000
Judge: Kirby J

Background

The accused was convicted by jury on 21 June 2000 of the murder of a 21-year-old woman with whom he had been in a romantic relationship. The victim disappeared on 29 March 1995, and her body was later found in bushland near the Wakehurst Parkway. The accused and the victim had known each other since school and had planned to become engaged, but the relationship deteriorated in late 1994, marked by the accused's jealousy, physical violence toward the victim, and an Apprehended Violence Order obtained against him in November 1994.

The prosecution case was primarily circumstantial. Key evidence included fibre analysis establishing that the victim had recently been in the accused's vehicle, and testimony from the victim's sister recounting a telephone conversation in which arrangements were made to meet the following day. The jury convicted on the basis that the accused either carried out the killing himself, aided or encouraged another to do so, or procured another person to commit it.

This was a retrial. The accused had previously been convicted and sentenced by Newman J, who fixed a non-parole period of 13 years. That conviction was quashed by the Court of Criminal Appeal, leading to the retrial and the current sentencing proceedings.

  • What sentence was appropriate for murder on retrial, having regard to the principle that an accused should not ordinarily receive a longer sentence following a retrial than after the first trial?
  • Whether credit should be given for the period spent in custody after the first sentence was imposed, pending release on bail for the retrial?
  • Whether the conditions of bail imposed during the retrial period were sufficiently onerous to warrant a reduction in the non-parole period?
  • Whether the delay between offending and sentencing, analogous to the circumstances in Todd v R, warranted further adjustment to the sentence?

Decision

Kirby J determined the facts relevant to sentencing to the criminal standard. His Honour found that the killing was premeditated and planned, not a spontaneous act. The accused's conduct reflected what his Honour described as "smouldering, vindictive passion" directed more at revenge than at any genuine emotional response to the relationship. The moral culpability attaching to each of the available bases for the verdict, whether as principal, aider, or procurer, was treated as equally serious.

Applying the principle from R v Gilmore (1979), confirmed in R v Bedford (1986), that an accused should not ordinarily receive a longer sentence on retrial, Kirby J took Newman J's original sentence as the starting point. The total sentence remained 20 years, with a base non-parole period of 14 years, consistent with the first trial outcome.

Kirby J then turned to whether adjustments were warranted. His Honour accepted that the period the accused spent in custody after Newman J's sentencing, until his release to bail on 8 December 1999 (a period of 1 year and 34 days), should be credited. Combined with the 1-year discount already applied by Newman J, a total deduction of 2 years and 34 days was made from the non-parole period.

Regarding bail conditions, Kirby J acknowledged the authorities establishing that onerous conditions can justify a reduction but concluded, on the evidence, that the conditions imposed in this case did not rise to the level required. On the question of delay analogous to Todd v R, his Honour found that case distinguishable on its facts and declined to make any further adjustment.

Orders Made

  • The accused was sentenced to imprisonment for 20 years, with a non-parole period of 14 years.
  • After crediting 2 years and 34 days for time already served and applicable discounts, the sentence was calculated from the date custody commenced on 19 June 2000.
  • Earliest eligible release on parole: 17 May 2012.
  • Sentence expiry: 17 May 2018.

Key Takeaways

  • On sentencing for murder following a retrial, the Supreme Court applied the established principle from R v Gilmore and R v Bedford that an accused should not ordinarily receive a longer sentence or non-parole period than that imposed after the first trial.
  • Credit for time in custody between the imposition of the first sentence and release on bail for the retrial is properly brought to account when calculating the adjusted non-parole period on resentencing.
  • Onerous bail conditions may in principle justify a reduction in a non-parole period, but the court found the conditions in this case did not reach the threshold necessary to warrant such an adjustment.
  • The principle from Todd v R and Mill v The Queen, that significant delay between offending and sentencing may call for leniency, was held not to apply where the delay arose from a retrial following an appeal rather than the jurisdictional circumstances present in those cases.
  • Where a jury convicts on alternate bases (principal offender, aider, or procurer) without specifying which, a sentencing court is not required to choose between those roles where the moral culpability is assessed as equivalent across all of them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)

Cases:
- Savvas v The Queen (1995) 183 CLR 1
- R v Gilmore (1979) 1 A Crim R 416
- R v Bedford (1986) 5 NSWLR 711
- R v Previtera (1997) 94 A Crim R 76
- R v Cartwright (1989) 17 NSWLR 243
- Todd v R [1982] 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59