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93
Court of Criminal Appeal 28 February 2001

R v HEARNE

[2001] NSWCCA 37

Also reported as (2001) 124 A Crim R 451
Assault & violenceHomicide

Citation: R v Hearne [2001] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 28 February 2001
Judge(s): Powell JA, Hulme J, Dowd J

Background

The appellant was sentenced on 4 June 1999 by Wood CJ at CL following his pleas of guilty to two charges: the murder of a police officer (Constable Peter Forsyth) on 28 February 1998, and the malicious wounding of a second police officer (Constable Jason Semple) with intent to cause grievous bodily harm on 27 February 1998.

For the murder, the sentencing judge imposed a minimum term of 20 years penal servitude with an additional term of 7 years. A concurrent fixed term of 6 years was imposed for the malicious wounding. The sentencing judge structured these terms to reflect the totality of the appellant's criminality.

The appellant sought leave to appeal on the basis that the sentences were manifestly excessive, and that the sentencing judge had failed to give adequate weight to several mitigating factors or had erred in the significance he attached to certain aggravating ones.

  • Whether the sentence imposed for murder was manifestly excessive
  • Whether the sentencing judge gave adequate weight to the appellant's effective surrender to police
  • Whether the guilty plea received appropriate discount, particularly given the lateness of the plea and the risks the appellant faced at trial
  • Whether sufficient weight was given to the appellant's contrition, remorse, prior good character, and youth
  • Whether the sentencing judge erred in his treatment of the victims being police officers, the use of a knife, and the absence of premeditation
  • Whether the applicable sentence range for murders involving an intent to cause grievous bodily harm (rather than an intent to kill) was correctly applied

Decision

The Court of Criminal Appeal allowed the appeal and reduced the murder sentence. The original minimum term of 20 years was quashed and replaced with a total term of 18 years, including a non-parole period of 13 years, to run concurrently with the sentence for malicious wounding from 3 March 2001.

On the guilty plea, the Court accepted that the plea was entered late, but noted it still carried appreciable mitigating value. The Court referred to the principle that a plea entitles an offender to an appreciable discount, noting the case of R v Thompson [2000] NSWCCA 309 as indicating a minimum of 10 percent. The Court also accepted that the plea carried additional weight because viable defences of provocation and self-defence had existed, and because the prosecution had only recently reformulated the second charge before the plea was entered.

The Court found no error in the sentencing judge's treatment of contrition and remorse, accepting his Honour's nuanced finding that genuine remorse had developed during custody, even though the appellant's early conduct after the offences showed indifference and a concern only for himself. These factors were nonetheless taken into account when assessing whether the overall sentence fell outside the appropriate range.

Reviewing comparable murder sentencing decisions (summarised in the schedule), the Court concluded that the original minimum term was too high when all mitigating factors were properly weighed together. The revised sentence of 18 years total, with a 13-year non-parole period, was considered to appropriately reflect the objective and subjective criminality of the appellant.

Orders Made

  • The appeal is allowed.
  • The sentence imposed on 4 June 1999 in respect of the murder offence is quashed.
  • In lieu thereof, the appellant is sentenced for murder to imprisonment for 18 years, commencing 3 March 2001, including a non-parole period of 13 years, to run concurrently from that date with the sentence imposed for malicious wounding.
  • The date upon which the appellant shall be eligible for release on parole is specified as 3 March 2014.

Key Takeaways

  • A late guilty plea still carries mitigating weight, though that weight is diminished compared to an early plea. The Court of Criminal Appeal confirmed that an appreciable discount applies, with R v Thompson indicating a minimum of around 10 percent as a guide.
  • Where viable defences existed at trial (here, provocation and self-defence) and the prosecution reformulated charges shortly before a plea, those circumstances can increase the utilitarian and mitigating value attributed to that plea.
  • Murder involving an intent to inflict grievous bodily harm, rather than a specific intent to kill, is treated as less objectively serious at sentence, consistent with the approach confirmed in cases such as Ashfield (CCA, 27 February 1998).
  • Remorse that develops during custody, even where initial post-offence conduct showed indifference, can still be accepted as genuine and taken into account as a mitigating factor, provided the sentencing court makes careful findings on the nature and timing of that remorse.
  • In assessing totality of sentence across multiple counts, the Court of Criminal Appeal will compare the outcome against a range of comparable cases to determine whether the sentence falls within an appropriate range, and will intervene where it does not.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 13A (referenced in the context of re-determination)

Cases:
- R v Thompson [2000] NSWCCA 309
- R v Barry [2000] NSWCCA 138
- R v Bowhay [2000] NSWCCA 54
- R v VRK (unreported, CCA, 27 May 1996)
- R v Webster (unreported, CCA, 15 July 1991)
- R v Ashfield and Hughes (unreported, Badgery-Parker J, 16 December 1994)
- Ashfield (unreported, CCA, 27 February 1998)