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Court of Criminal Appeal 25 September 2002

R v Robinson

[2002] NSWCCA 359

Homicide
SENTENCING MURDER OFFENDER AGED 17 WOULD BE WORST CASE BUT FOR AGE SENTENCE OF 45 YEARS WITH 35 YEARS NON PAROLE PERIOD

Citation: R v Robinson [2002] NSWCCA 359
Court: NSW Court of Criminal Appeal
Date: 25 September 2002
Judge(s): Giles JA, Dunford J, Greg James J

Background

The appellant, a 17-year-old at the time of the offending, pleaded guilty to the murder of a man he had met while walking around at night. The killing was of extreme violence: the victim was beaten about the head with a bowling pin and then mutilated with a knife after death. The appellant spoke of the killing to others in the following days in a calm, casual manner and later recounted details to a subsequent girlfriend.

Adams J in the Supreme Court sentenced the appellant to 45 years' imprisonment, commencing 22 January 1999, with a non-parole period of 35 years. Adams J characterised the offence as one that would have been a worst case but for the appellant's age.

The appellant sought leave to appeal against the severity of the sentence on three grounds.

  • Whether the sentencing judge erred in finding there was no evidence capable of acceptance that the appellant felt remorse
  • Whether the sentencing judge erred in declining to reduce the sentence by reason of the guilty plea
  • Whether the 45-year head sentence with a 35-year non-parole period was manifestly excessive

Decision

On the question of remorse, the Court of Criminal Appeal found no error. The sentencing judge's assessment of the evidence was open to him, and the appellant's conduct and statements after the killing provided a sound basis for the finding that no genuine remorse had been demonstrated.

On the guilty plea, the Court again found no appealable error. The sentencing judge had properly considered the circumstances of the plea and was entitled to conclude that no discount was warranted in the particular circumstances of the case.

On manifest excess, the Court confirmed the 45-year head sentence. Given the extreme gravity of the offence and the evidence supporting a real risk of reoffending, the sentencing judge's emphasis on the protection of the public was properly founded. The head sentence did not fall outside the range of a proper sentencing discretion.

However, the Court found appealable error in the non-parole period. At almost 78 per cent of the head sentence, the 35-year non-parole period was considerably longer than those customarily imposed for determinate murder sentences. The Court held that the appellant's youth, the difficulty of predicting future rehabilitation, the length of the head sentence, the contribution of parole supervision to rehabilitation, and the fact that parole release is not automatic together constituted special circumstances. The sentencing judge had not been invited to find special circumstances, and the Court concluded the non-parole period was outside the proper range. A non-parole period of 27 years, representing 60 per cent of the head sentence, was substituted.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Head sentence of 45 years confirmed
  • Non-parole period of 35 years quashed and replaced with a non-parole period of 27 years, commencing 22 January 1999
  • Earliest eligible parole date: 21 January 2026

Key Takeaways

  • A sentencing judge's finding of no remorse will not constitute appealable error where the offender's post-offence conduct and statements provide a rational basis for that conclusion.
  • No error arises from declining to discount a sentence for a guilty plea where the sentencing judge has properly considered the circumstances of that plea.
  • The Court of Criminal Appeal confirmed that the protection of the public is a legitimate and weighty sentencing consideration for murder, provided it is founded in the evidence before the sentencing court.
  • A non-parole period approaching 78 per cent of a determinate head sentence for murder may fall outside the proper sentencing range, particularly where the offender's youth and the potential for future rehabilitation have not been weighed as special circumstances.
  • Special circumstances are not confined to a fixed category: the Court of Criminal Appeal confirmed that all considerations relevant to the minimum period of detention may be taken into account, including the offender's age, uncertainty about future conduct, and the rehabilitative function of parole.

Legislation and Cases Referenced

Cases:
- Bugmy v The Queen (1990) 169 CLR 525
- Dinsdale v The Queen (2000) 202 CLR 321
- Power v The Queen (1974) 131 CLR 623
- R v Costen (1989) 11 Cr App R (S) 182
- R v Crump (CCA, 30 May 1993, unreported)
- R v Elemes [2000] NSWCCA 235
- R v Fernando (1977) 95 A Crim R 533
- R v GDR (1994) 35 NSWLR 376
- R v Glen [1999] NSWSC 1018
- R v Harrison (1997) 93 A Crim R 314
- R v Leonard (CCA, 7 December 1998, unreported)
- R v Purdey (1992) 65 A Crim R 441
- R v Simpson (2001) 53 NSWLR 704
- R v Stabler (1984) 6 Cr App R (S) 129
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Tran [1999] NSWCCA 109
- Siganto v The Queen (1998) 194 CLR 656
- Veen v The Queen (No 1) (1979) 143 CLR 458
- Veen v The Queen (No 2) (1988) 164 CLR 465