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13
Court of Criminal Appeal 9 November 2001

R. v. Mark LEWIS

[2001] NSWCCA 448

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION WHETHER VERDICT UNREASONABLE APPEAL AGAINST SENTENCE LIFE SENTENCE

Citation: R v Mark Lewis [2001] NSWCCA 448
Court: NSW Court of Criminal Appeal
Date: 9 November 2001
Judge(s): Hodgson JA, Barr J, Greg James J

Background

The appellant was convicted by jury in November 1999 of two murders committed on Valentine's Day 1994 at a massage parlour in Gladesville. The first victim was the appellant's de facto partner, who operated the business. The second was her employee, who was killed in the same attack.

The Crown case was that the appellant participated in a joint criminal enterprise with a co-offender, Lindsay Rose, to murder his de facto partner. The Crown alleged the appellant lured the victim back to her business premises and delivered her to the waiting killers. Rose pleaded guilty and was sentenced to life imprisonment for these and other murders.

At sentencing, Ireland J imposed a life sentence for the murder of the de facto partner under s 61 of the Crimes (Sentencing Procedure) Act 1991, on the basis that this was a worst-case murder. The appellant was sentenced to 18 years for the second murder. He appealed both the conviction and the sentence.

  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in treating the deprivation of five children of their mother as an aggravating feature of the offence
  • Whether the sentencing judge erred in finding that the domestic relationship between the appellant and the victim could not mitigate the culpability involved in a contract killing
  • Whether the life sentence was justified under s 61 as a case of extreme culpability

Decision

Appeal against conviction: The Court of Criminal Appeal dismissed the appeal against conviction, finding the jury's verdict was not unreasonable. The circumstances clearly established at trial, including the appellant's presence at the car park with the victim when a rifle bag was removed from his vehicle, his luring the victim to the scene, and his inconsistent statements to police, supported the jury's conclusion that he participated in the joint criminal enterprise.

Aggravating feature (five children): The Court upheld the sentencing judge's treatment of the five dependent children as an aggravating consideration. The Court explained that this did not reflect any suggestion that the victim was more worthy than other possible victims. Rather, it recognised the real harm caused to children by the loss of their mother, and that an offender's awareness of that harm is relevant to culpability.

Domestic relationship as mitigation: The Court accepted in principle that, in some contract killings, an offender's emotional relationship with a victim might adversely affect decision-making capacity to a degree that mitigated culpability. However, the Court found no error in the sentencing judge's conclusion that this was not such a case on these facts.

Life sentence: The Court found no error in the imposition of a life sentence. The sentencing judge had correctly identified several features that together placed the killing in the worst category: it was a contract killing, the victim was blameless, the offence was planned, the appellant delivered the victim to her death, and the appellant provided encouragement to Rose to kill her. The Court also noted the second murder, for which the appellant was convicted under the felony murder principle, as well as the appellant's lack of contrition, which was relevant to the exercise of the sentencing discretion.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offender's knowledge that a victim's death will deprive children of their parent can properly be treated as an aggravating feature, reflecting the harm caused to those children rather than any comparative assessment of the victim's worth.
  • In dismissing the conviction appeal, the Court applied the principle that a verdict is not unreasonable where the evidence, including strong circumstantial evidence and inconsistent statements by the accused, sufficiently supported the jury's conclusion.
  • A life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1991 may be warranted where multiple features combine to place the offence in the worst category: premeditation, a blameless victim, the deliberate delivery of the victim to her killers, and active encouragement of the perpetrator.
  • While an offender's emotional relationship with a victim could, in principle, mitigate culpability even in a contract killing, this mitigation is only available where the evidence demonstrates that the relationship materially impaired the offender's decision-making capacity.
  • Lack of contrition, though not determinative of whether a case falls within s 61, remains a relevant consideration in the broader sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1991 (NSW), s 61

Cases:
- R v Previtera (1997) 94 A Crim R 76