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Supreme Court 6 November 2002

R v SJB and McLean

[2002] NSWSC 1042

Homicide
CRIMINAL LAW SENTENCE MURDER PLEAS OF GUILTY.

Citation: R v SJB and McLean [2002] NSWSC 1042
Court: Supreme Court of New South Wales
Date: 6 November 2002
Judge(s): Wood CJ at CL

Background

Two defendants, referred to here as SJB (a young female offender) and Matthew John McLean, each pleaded guilty to the murder of Stephen David Tonkiss, which occurred on 24 July 2001 at Seaforth in Sydney. McLean also pleaded guilty to taking and driving Mr Tonkiss's motor vehicle without consent.

The killing arose from a premeditated and unprovoked attack. The defendants armed themselves with knives at McLean's residence before joining the victim in his car under a false pretext. While the car was still moving, SJB stabbed Mr Tonkiss from the rear seat. Both defendants then repeatedly stabbed him inside and outside the vehicle, inflicting 13 separate stab wounds. Mr Tonkiss died shortly after from his injuries.

Following the attack, the defendants drove the victim's car to Newcastle, where police stopped the vehicle in the early hours of the following morning and arrested them both. A post-mortem confirmed the cause of death as multiple stab wounds, the most critical of which penetrated the pulmonary artery and aorta.

  • What were the appropriate head sentences and non-parole periods for each defendant convicted of murder by guilty plea?
  • How should the youth, immaturity, and prospects of rehabilitation of each defendant be weighed in sentencing for a very serious offence?
  • What discount, if any, applied for the utilitarian value of a guilty plea and evidence of remorse?
  • Were there special circumstances warranting a longer-than-standard ratio between the non-parole period and the head sentence?
  • How should relative culpability between co-offenders be reflected in the sentences imposed?

Decision

Wood CJ at CL sentenced both defendants on the same day, but imposed meaningfully different sentences reflecting their different ages, levels of culpability, and conduct before and after the offence. The court found that the murder was wholly unprovoked and senseless, carried out after deliberate arming and a degree of planning. The gravity of the offence was high.

In relation to SJB, the court took into account her youth (she was subject to the Children (Criminal Proceedings) Act 1987 for part of the sentence), her cooperation with police through a formal interview, psychiatric considerations requiring ongoing assessment, and her prospects of rehabilitation. The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a longer parole period to allow for supervision post-release. She received a 25 per cent discount for her guilty plea and assistance to police.

For McLean, the court found his culpability was somewhat greater than SJB's. The court was satisfied that, absent McLean's jealousy and anger, the attack would not have occurred; he had encouraged SJB to arrange the meeting with the victim, and he supplied the weapons used. Although McLean was not legally a child, his youth and immaturity were treated as relevant mitigating factors. His likely need to serve part of his sentence on protection, with the associated hardships and limitations that entails, was also noted. He received a 20 per cent discount for his guilty plea, acceptance of responsibility, and remorse. Special circumstances were also found in his case.

On the charge of taking and driving a conveyance, the court imposed a concurrent fixed term of six months on McLean. The court observed that while the offence was serious in its own right, it was so closely connected to the murder that no accumulation was warranted.

Orders Made

  • SJB: Imprisonment for 15 years, commencing 25 July 2001. Non-parole period of 10 years, commencing 25 July 2001, expiring 24 July 2011 (earliest eligible release date). The portion of the sentence served before SJB attains the age of 20 years is to be served in a Detention Centre; the balance in the adult correctional system.
  • McLean (murder): Imprisonment for 19 years, commencing 25 July 2001. Non-parole period of 13 years, commencing 25 July 2001, expiring 24 July 2014 (earliest eligible release date).
  • McLean (take and drive conveyance): Fixed term of 6 months imprisonment, commencing 25 July 2001, concurrent with the murder sentence.

Key Takeaways

  • Relative culpability between co-offenders is a recognised sentencing consideration: where the evidence establishes that one offender was the instigating force behind a joint murder, a higher sentence for that offender is appropriate even where both pleaded guilty to the same charge.
  • Youth and immaturity, while not a bar to serious punishment for murder, remain legitimate mitigating factors, particularly where they contributed to the offending, following the principles discussed in Regina v Hearne [2001] NSWCCA 37.
  • A guilty plea attracts a utilitarian discount even in cases of the utmost gravity; here the court applied 25 per cent for SJB (whose plea came alongside police assistance) and 20 per cent for McLean.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established by a combination of factors including youth, immaturity, the need for ongoing psychiatric support, and the prospect of serving time on protection, all of which increase the importance of a supervised parole period.
  • Where a related offence is so closely interconnected with a murder as to form part of the same criminal episode, the sentencing court may decline to accumulate the sentences, on the basis that doing so would not better reflect the overall criminality involved.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Regina v Hearne [2001] NSWCCA 37
- R v Kama [2000] NSWCCA 23
- Regina v Palu [2002] NSWCCA 381
- Regina v Pham and Ly (1991) 55 A Crim R 128
- R v Sharma [2002] NSWCCA 142
- Regina v SLD [2002] NSWSC 758
- R v Tran [1999] NSWCCA 109
- Cox NSWCCA 30 August 1999
- R v Craig NSWSC 14 April 1993
- R v D NSWSC 8 April 1995
- R v DAR NSWCCA 8 November 1995
- R v Davison NSWSC 11 September 1992
- R v McCabe NSWCCA 14 October 1991
- R v MG NSWCCA 11 December 1996 and 13 July 1998
- R v Miles NSWCCA 28 March 1995
- R v Moore NSWCCA 21 June 1995
- R v Oliver NSWSC 17 December 1992
- R v RL NSWCCA 19 February 1992
- R v Sharpe NSWSC 10 September 1992