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Supreme Court 21 February 2001

R v Fowler

[2001] NSWSC 179

Homicide
CRIMINAL LAW SENTENCE MURDER

Citation: R v Fowler [2001] NSWSC 179
Court: Supreme Court of New South Wales (Common Law Division)
Date: 21 February 2001
Judge: Simpson J

Background

The offender was convicted by jury on 20 February 2001 of the murder of Trevor Climpson, killed by three gunshot wounds at his home at Cecil Park on 8 January 1988. This was the offender's third conviction on the same charge, following two earlier convictions each successfully appealed to the Court of Criminal Appeal, which quashed both and ordered retrials.

The offender had spent a total of five years, one month and sixteen days in custody across the periods following his arrest and successive convictions. The sentencing exercise was therefore shaped significantly by that history of prior custody and by the sentences imposed at the two earlier trials.

The Crown's case was entirely circumstantial, presented on two alternatives: that the offender was the actual shooter, or that he was present aiding and abetting another person who fired the fatal shots. The evidence established that the victim had been mistreated by the offender's sister's husband, and that the killing was premeditated.

  • What sentence was appropriate upon a third conviction for murder, given the substantial time already served in custody across two prior convictions?
  • Whether the sentencing court should follow the established (though non-binding) convention that a sentence imposed after a successful appeal should not exceed the sentence imposed following the prior conviction.
  • Whether the offender should be sentenced as a principal in the first degree or as an accessory, given the competing findings from the two prior trials.
  • Whether any special circumstances existed to justify a non-parole period of less than three-quarters of the total sentence under the Crimes (Sentencing Procedure) Act 1999.

Decision

Simpson J found beyond reasonable doubt that the offender fired at least one of the two guns used in the killing, making him a principal in the first degree. The court considered it most likely that he fired the two shots from the .357 Magnum found at his Moree home in 1990. Notwithstanding that finding, Simpson J declined to sentence him more severely than Dowd J had at the second trial, where sentencing proceeded on the basis that the offender was proved only to be an accessory.

The established convention in Australian sentencing is that a judge sentencing after a successful appeal ordinarily does not impose a term more severe than was previously imposed. Simpson J confirmed that convention applied here and that the Crown did not argue otherwise. The effective benchmark was the sentence Dowd J would have imposed but for the time already served from the first conviction: 16 years, with a non-parole period of 12 years.

The court found no special circumstances justifying a non-parole period of less than three-quarters of the sentence, in agreement with the approach taken by Dowd J. Simpson J acknowledged that the resulting sentence of 10 years and 10 months might appear inadequate for a premeditated murder to an observer unaware of the history, but emphasised that it represented the remainder of an effective 16-year sentence, with the balance already served.

The victim impact statement from the deceased's brother was received but, consistent with the state of the law at the time, could not be used to increase or otherwise affect the sentence. Simpson J recorded sympathy for the brother's loss while applying that legal constraint.

Orders Made

  • The offender was convicted of the murder of Trevor Climpson.
  • Sentenced to imprisonment for 10 years and 10 months, commencing 20 February 2001.
  • Non-parole period of 6 years and 10 months.

Key Takeaways

  • The established convention that a sentencing court following a retrial should not impose a sentence more severe than the previous sentence is non-binding but was confirmed as applicable on these facts, absent any argument from the Crown to the contrary.
  • Where an offender has spent substantial time in custody under prior convictions for the same offence, that time is brought to account in calibrating the sentence imposed on reconviction, so that the total effective punishment reflects what would originally have been imposed.
  • A sentencing court may make its own findings of fact as to the offender's role (here, principal rather than accessory) while still declining, as a matter of convention and consistency, to sentence more severely than the prior judge who found a lesser role proved.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a non-parole period must be at least three-quarters of the total sentence unless special circumstances exist. The court found no such circumstances here.
  • Victim impact statements were received but, consistent with R v Previtera (1997) 96 A Crim R 76, could not affect the sentencing outcome under the law as it then stood.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Previtera (1997) 96 A Crim R 76