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Court of Criminal Appeal 2 April 2001

R v Petrinovic

[2001] NSWCCA 118

HomicideTheft & propertyFirearms & weapons

Citation: Petrinovic v R [2001] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 2 April 2001
Judge(s): Studdert J, Stein JA, Wood CJ at CL

Background

The applicant pleaded guilty before Greg James J in the Supreme Court to the murder of a bottle shop employee during an armed robbery at Lurnea in October 1997. The Crown accepted the plea on the basis of felony murder, meaning the killing occurred in the course of a serious criminal enterprise rather than as a matter of deliberate intent. The sentencing judge imposed 27 years penal servitude with a minimum term of 20 years, dating from the applicant's arrest on 26 October 1997.

The applicant, who appeared in person before the Court of Criminal Appeal, sought leave to appeal against the length of that sentence. His grounds centred on his lack of intent to kill, his heroin addiction, his genuine contrition, and the utilitarian value of his guilty plea.

The applicant had an extensive criminal history involving numerous armed robberies stretching back to 1979. By the time of this offence, he had spent more than 15 years in custody. He committed the murder only four and a half months after his most recent release, and while on parole.

  • Whether the sentencing judge erred in principle in imposing a sentence of 27 years with a 20-year minimum for felony murder.
  • Whether sufficient weight was given to mitigating factors including the guilty plea, genuine contrition, and the applicant's heroin addiction.
  • Whether the applicant's stated absence of intent to kill was properly considered in assessing his moral culpability.

Decision

The Court of Criminal Appeal found no error in principle in the sentencing judge's approach. The sentencing judge had correctly identified the crime as objectively grave, and the Court accepted his finding that the applicant's culpability was "as great as murder committed intentionally," given that the robbery was carried out with a loaded weapon.

The Court acknowledged that mitigating factors were present and had been taken into account below. Credit was given for the guilty plea (notwithstanding the overwhelming evidence against the applicant), and the sentencing judge accepted the applicant's contrition as genuine. His heroin addiction, while relevant context, did not displace the severity warranted by the circumstances.

The applicant's criminal history weighed heavily against him. Referring to the High Court's reasoning in Veen v The Queen (No 2), the Court confirmed that a long record of similar offending was legitimately relevant to sentencing. It indicated a continuing attitude of disobedience of the law, and justified greater weight being given to retribution, deterrence, and community protection. The murder occurred during what was effectively the applicant's nineteenth armed robbery.

The Court concluded the sentence fell within the appropriate range and that no intervention was warranted. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offender's extensive history of similar offending is a legitimate and significant sentencing consideration, particularly where it demonstrates a continuing pattern of disregard for the law rather than an isolated aberration.
  • Under the High Court's reasoning in Veen v The Queen (No 2), antecedent criminal history may properly increase the weight given to retribution, deterrence, and protection of the community when sentencing for a current offence.
  • A stated absence of intent to kill does not automatically reduce culpability in a felony murder case where the offence was committed with a loaded firearm; the sentencing court's finding of culpability equivalent to intentional murder was upheld as correct in law and open on the facts.
  • Genuine contrition and a guilty plea at the first available opportunity are mitigating factors, but their weight may be limited where the evidence against the offender was overwhelming.
  • Committing a serious offence while on parole remains an aggravating feature that adds to the overall gravity of the conduct for sentencing purposes.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 19A (murder, maximum penalty of penal servitude for life; power to impose lesser sentence)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465