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Supreme Court 27 August 2001

R v Scurr

[2001] NSWSC 727

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER SHOOTING TWO PEOPLE OBJECTIVE CRIMINALITY CONSIDERABLE OFFENCE OUT OF CHARACTER

Citation: R v Scurr [2001] NSWSC 727
Court: Supreme Court of New South Wales
Date: 27 August 2001
Judge(s): Wood CJ at CL

Background

The prisoner was the manager of a hotel in Katoomba owned by a businessman named John Beaumont. An investigation into poker machine takings at a separate hotel formerly managed by Ali Mokdad revealed a shortfall of $100,000 to $150,000, leading to embezzlement charges against Mokdad. The prisoner was a central prosecution witness in those proceedings.

From late 1998 through mid-1999, a prolonged campaign of threats unfolded against the prisoner and the Beaumont family. This campaign included repeated silent and menacing telephone calls, threatening gestures in court, and ultimately a shotgun blast fired at the window of the prisoner's apartment. Following that shooting, the prisoner began carrying a loaded pistol.

On 22 June 1999, the prisoner shot and killed both Mokdad and Jamie Creighton. At trial, the jury acquitted him of murder on each count but found him guilty of manslaughter on both counts. The sentencing proceedings addressed the appropriate penalty in light of the extensive background, the prisoner's mental state, and the circumstances of the killings.

  • What weight should be given to the defences of provocation and substantial impairment by reason of abnormality of mind at the sentencing stage, given that neither fully negated criminal responsibility?
  • What was the appropriate head sentence and non-parole period for two counts of manslaughter arising from the same sequence of events?
  • Whether special circumstances existed justifying a departure from the standard ratio between the head sentence and the non-parole period under the Crimes (Sentencing Procedure) Act 1999.
  • How should the sentences for the two manslaughter counts be structured, as to concurrency or accumulation, to reflect the additional criminality of killing two people?

Decision

Wood CJ at CL acknowledged that the objective criminality in this case was considerable. The prisoner had shot and killed two people, and neither provocation nor substantial impairment by reason of abnormality of mind fully extinguished his responsibility. Both personal and general deterrence were identified as important sentencing considerations.

At the same time, the court accepted that the offending was entirely out of character and occurred against a backdrop of sustained, serious threats to the prisoner and those close to him. The prolonged failure of police to act on those complaints, culminating in a shotgun being fired into his apartment, was treated as highly relevant context. The court also took into account a psychiatric report from Dr Campbell, the prisoner's conduct on bail under strict conditions including daily reporting and a nightly curfew, and the tragic impact on the Creighton family as disclosed in victim impact statements.

The court found special circumstances justifying a departure from the standard statutory ratio between head sentence and non-parole period, reflecting the need for an extended period of supervision on parole given the prisoner's circumstances. The two sentences were structured to run partly concurrently and partly cumulatively, so as to reflect the additional criminality of having killed two persons while avoiding a crushing total sentence.

Orders Made

  • For the manslaughter of Jamie Creighton: imprisonment for six years, commencing 8 September 2000 and expiring 7 September 2006, with a non-parole period of three years expiring 7 September 2003.
  • For the manslaughter of Ali Mokdad: imprisonment for six years, commencing 8 December 2001 and expiring 7 December 2007, with a non-parole period of three years expiring 7 December 2004.
  • The sentences to be served partly concurrently and partly cumulatively, producing a total effective term of seven years and three months with a total non-parole period of four years and six months.
  • Earliest eligibility for release on parole: 7 December 2004.
  • The court indicated it would be appropriate for the relevant authorities to consider, at an early time, whether the prisoner could serve his sentence in a minimum security institution, and requested that the sentencing remarks and Dr Campbell's report be made available to those authorities.

Key Takeaways

  • A jury verdict of manslaughter, following acquittal on murder charges, does not eliminate all moral and legal responsibility for the killing; the sentencing court must still assess objective criminality and apply both personal and general deterrence.
  • Where an offender kills two people in the one sequence of events, sentences structured with partial concurrency and partial accumulation reflect the additional criminality without producing an unjust aggregate outcome.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can justify extending the non-parole period's proportion relative to the head sentence when the offender's rehabilitation and supervision needs are particularly acute.
  • Sustained provocation, a genuine psychiatric condition falling short of a complete defence, and a prolonged failure by police to respond to documented threats are all relevant mitigating considerations at sentencing, even where they do not negate guilt.
  • Strict bail conditions, including daily reporting and a nightly curfew, are properly reflected as a mitigating factor that reduces the effective sentence the offender serves.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 28(3), 44(2), 47(2), 47(3)

Cases:
- R v Previtera (1997) 94 A Crim R 76 (regarding the use of victim impact statements)