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Supreme Court 25 August 2000

REGINA v. OFFER

[2000] NSWSC 839

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW SENTENCE MURDER CHANGE OF PLEA BEFORE JURY LEVEL OF CULPABILITY

Citation: Regina v Offer [2000] NSWSC 839
Court: Supreme Court of New South Wales (Criminal Division)
Date: 25 August 2000
Judge(s): Greg James J

Background

The offender, Paul Michael Offer, was charged with a series of violent offences arising from a dispute with a former business associate. The background involved a falling-out over business matters and the offender's resentment toward individuals who had given evidence against him in earlier court proceedings. The offences were calculated and targeted at witnesses in those prior cases.

The first count concerned a crossbow attack on a woman at her home in St Ives in February 1997. The offender had intended to kill her husband, a prosecution witness. The bolt struck the woman in the head and left her with permanent serious injuries including semi-paralysis, vision loss, slurred speech, and major depression. The second count concerned the murder of a marine electrician, shot in the head at his home in Allawah in September 1997. That victim was also a prosecution witness in matters involving the offender. Three counts of soliciting others to commit murder were placed on a Form 1 (a procedure by which additional offences are taken into account at sentencing without a separate conviction being entered).

The offender initially pleaded not guilty and a trial before a jury commenced. Following the Crown's opening, he changed his plea to guilty on the murder and grievous bodily harm counts. The remaining soliciting counts were dealt with by way of Form 1.

  • Whether the procedure for entering a guilty plea mid-trial, before a jury, complied with the requirements of s 91 of the Criminal Procedure Act 1986 (as amended from 1 January 2000) and its predecessor provision
  • Whether a life sentence was warranted, having regard to the statutory criteria requiring the court to be satisfied that the offender's level of culpability was so extreme that only lifelong confinement could meet the community's interest in retribution, punishment, protection, and deterrence
  • What discount, if any, was appropriate for the guilty plea entered after the Crown had opened to the jury
  • Whether special circumstances existed justifying a variation of the standard statutory proportion between the non-parole period and the total sentence
  • How the sentence for the grievous bodily harm offence should be structured in relation to the murder sentence

Decision

Greg James J identified a procedural irregularity in how the guilty plea was received. Section 91 of the Criminal Procedure Act 1986 (effective from 1 January 2000) required the judge, not the jury, to find the accused guilty following a mid-trial change of plea. Although the jury had returned verdicts by direction, the judge was satisfied that he had approved the plea, that the Crown had accepted it, and that his conviction of the offender rested on that basis. His Honour proceeded accordingly under s 91(2).

On the question of a life sentence, the judge conducted detailed analysis of the offender's conduct and personal circumstances. The crimes were described as appalling and reprehensible in the extreme. However, after anxious consideration, the judge was unable to reach the level of satisfaction required by the legislation to impose a sentence of natural life. The court accepted that the statutory threshold for a life sentence demands a finding that culpability is so extreme that no finite sentence can adequately serve the community interest in retribution, punishment, protection, and deterrence.

The judge found special circumstances justifying a departure from the standard statutory ratio between the non-parole period and the total sentence. Those circumstances included the length of the sentence itself, the offender's cognitive deficits, possible brain damage, and his isolation. The judge considered it important that the maximum opportunity for supervised parole, with the sanction of return to custody, be preserved.

A discount of 15 per cent was applied for the guilty plea, in accordance with the Court of Criminal Appeal's approach in Thomson and Houlton. The sentence for the grievous bodily harm offence was ordered to run concurrently with the murder sentence, and no separate non-parole period was set for it given the penalties already imposed.

Orders Made

  • Murder: total sentence of 34 years, with a non-parole period of 25 years, taking into account three Form 1 matters (the soliciting counts)
  • Cause grievous bodily harm with intent to murder: 10 years imprisonment, to be served concurrently with the murder sentence, no non-parole period set
  • Both sentences to commence on 17 October 1997
  • Earliest eligible parole date: 16 October 2022

Key Takeaways

  • The Supreme Court confirmed that, following the amendment to s 91 of the Criminal Procedure Act 1986 effective 1 January 2000, a mid-trial guilty plea requires the judge (not the jury) to find the accused guilty; however, a procedural irregularity in this case did not invalidate the conviction where the judge was independently satisfied of guilt and had approved the Crown's acceptance of the plea.
  • A life sentence under the applicable NSW statutory framework requires the sentencing court to be affirmatively satisfied that the offender's culpability is so extreme that the community's interests in retribution, punishment, protection, and deterrence cannot be met by any finite sentence. The threshold is a high one.
  • Where a guilty plea is entered only after the Crown has opened its case to the jury, the discount applied may be substantially less than that available for an early plea. Here, the court applied 15 per cent, following Thomson and Houlton.
  • Special circumstances sufficient to vary the statutory non-parole proportion can arise from a combination of factors including the length of the sentence, the offender's cognitive deficits, possible brain damage, and social isolation, where those factors make extended post-release supervision particularly important.
  • Concurrent sentences and the absence of a separate non-parole period on a lesser count may be appropriate where a substantial penalty has already been imposed for the primary offence.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 91
- Crimes Act 1900 (NSW), s 399A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Thomson and Houlton [2000] NSWCCA 309
- Maxwell v The Queen (1996) 184 CLR 501
- Regina v Ress [2000] NSWCCA 224
- De Simoni (1981) 147 CLR 383
- Veen (No 2) (1987-88) 164 CLR 465
- Ibbs (1987) 163 CLR 447
- Pearce (1998) 104 CLR 610
- Mitchell (1996) 184 CLR 333
- Regina v Ross (CCA, unreported, 20 April 1994)
- Regina v Petrinovic [1999] NSWSC 1131
- Regina v Barac [1999] NSWSC 61
- Regina v JCW [2000] NSWCCA 209
- Regina v Rose [1999] NSWCCA 327
- Various other CCA unreported decisions as cited in the judgment