Citation: REGINA v Mark Daniel KIRKMAN [2002] NSWSC 1133
Court: Supreme Court of New South Wales
Date: 24 May 2002
Judge(s): Bell J
Background
The offender was convicted by jury of the murder of a twenty-one year old man in Wee Waa, New South Wales, on or about 9 December 2000. The offender and another man, Ricky O'Brien, had spent an afternoon and evening drinking and discussing grievances against the deceased. The offender later lured the deceased into his vehicle under the pretence of a marijuana session and drove him to a bushland area outside town.
At that location, the deceased was stabbed twice in the lower back and beaten about the skull and face with golf irons. The injuries were severe and fatal. Both the offender and O'Brien left the scene separately. When police spoke to each man the following day, both gave accounts blaming the other entirely for the violence.
O'Brien was not charged and gave evidence for the Crown at trial. The offender was convicted on the basis of an extended joint criminal enterprise: his own police interviews confirmed he had planned to take the deceased away from his friends for a confrontation, and that he knew O'Brien had placed golf irons in the car as "backup." After conviction, the offender contacted police again and provided a third recorded interview in which he acknowledged his own active role in the killing and offered to give evidence against O'Brien.
Legal Issues
- What sentence was appropriate for the murder conviction, having regard to the objective seriousness of the offence?
- Whether the offender's post-conviction cooperation with authorities, including a third police interview and an undertaking to give evidence against O'Brien, justified a discount on the sentence that would otherwise have been imposed.
- Whether special circumstances existed to justify a non-parole period of less than three-quarters of the head sentence under the Crimes (Sentencing Procedure) Act 1999.
Decision
Bell J sentenced the offender on the basis of the account given in the third post-conviction police interview, read alongside the evidence at trial. On that account, the offender was the instigator: he planned the confrontation, drove the deceased to an isolated location, initiated the fight, and actively participated in the fatal beating with a golf iron.
On the question of cooperation, the court acknowledged that the information provided in the third interview was of some significance to authorities, as it offered a basis for prosecuting O'Brien and was supported by independent evidence from the trial. However, the court gave that cooperation limited weight. Two factors reduced its value: the offender came forward only after conviction, and he had previously given a contradictory account under oath at trial.
The court determined a fifteen percent discount was appropriate, reducing the sentence that would otherwise have been imposed to eighteen years imprisonment. The court also took into account that the offender was likely to serve the entirety of his sentence in protective custody, given the nature of the offence, which was a further relevant consideration in calibrating the discount.
On the question of special circumstances, the court accepted that this was the offender's first term of imprisonment and that the sentence would be lengthy, requiring structured supervision upon release. Nevertheless, Bell J was not satisfied that special circumstances existed warranting a non-parole period below the statutory minimum of three-quarters of the head sentence. The court found the proposed non-parole period would still allow a sufficient period of conditional parole supervision.
Orders Made
- The offender was sentenced to eighteen years imprisonment.
- The sentence was deemed to have commenced on 10 December 2000 and to expire on 9 December 2018.
- A non-parole period of thirteen years and six months was specified.
- The first date of eligibility for consideration for release on parole was set at 9 June 2014.
Key Takeaways
- Bell J found that post-conviction cooperation with authorities can attract a sentencing discount under s 23(2) of the Crimes (Sentencing Procedure) Act 1999, but the weight of that discount is significantly reduced where the offender provided a contradictory account under oath at trial before coming forward.
- A fifteen percent discount was applied in circumstances where the offender's cooperation occurred late, was self-serving, and was qualified by his prior false testimony, but where the information was nonetheless of some utility to a prosecution of a co-participant.
- The court's finding that the offender would serve his entire sentence in protective custody was treated as a relevant factor when calibrating the extent of the sentencing discount, reflecting the harsher conditions that protection prisoners typically face.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances are required to justify a non-parole period below three-quarters of the head sentence; a lengthy first term of imprisonment and the need for post-release supervision were considered but held insufficient to meet that threshold.
- Sentencing on the basis of an extended joint criminal enterprise did not require proof that the offender personally delivered the fatal blows; his role in planning and executing the scheme, and his knowledge that weapons were present, were sufficient foundations for the murder conviction and the sentence imposed.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(2), 44(2)
Cases:
- R v Previtera (1997) 94 A Crim R 76