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Court of Criminal Appeal 8 May 2003

Regina v Robert John Hill

[2003] NSWCCA 128

HomicideFirearms & weapons

Citation: Regina v Robert John Hill [2003] NSWCCA 128
Court: New South Wales Court of Criminal Appeal
Date: 8 May 2003
Judge(s): Sully J (principal judgment); Levine J and Buddin J (agreeing)

Background

The appellant pleaded guilty upon arraignment to two counts of murder and two counts of malicious discharge of a firearm with intent to cause grievous bodily harm. All four offences were committed on 21 February 1999 at Berkeley Vale. The two murder victims were Bradley Watson and Lawrence O'Shea, and the firearms offences involved Michael Rasic and Wendy O'Shea.

At first instance, O'Keefe J sentenced the appellant in the Supreme Court on 27 March 2000. For each murder, his Honour imposed a minimum term with an additional term of life imprisonment. For each firearms offence, his Honour imposed a minimum term of nine years with an additional term of three years. All sentences were backdated to 24 February 1999, the date of the appellant's arrest.

The appellant sought leave to appeal against all four sentences on grounds of asserted severity and various alleged sentencing errors.

  • Whether the structure of the two murder sentences (a minimum term coupled with an additional term of life imprisonment) was authorised under the applicable legislation
  • Whether the sentencing judge made factual findings that were not reasonably open on the evidence, including findings about premeditation, violent propensities, and the weight given to psychiatric evidence
  • Whether the sentencing judge properly applied the discount for guilty pleas
  • Whether the sentences complied with the principles established by the High Court in The Queen v Pearce (1998) 194 CLR 610 regarding the structuring of concurrent or cumulative sentences
  • Whether the sentencing judge erred in taking into account the contents of victim impact statements
  • Whether the sentencing judge adequately addressed the totality of the appellant's subjective case, including his history of major depression

Decision

The Crown conceded, and the Court agreed, that the structure of the two murder sentences was erroneous. Imposing a minimum term with an additional term of life imprisonment was not authorised by section 431B of the Crimes Act 1900 (NSW), as clarified by the Court of Criminal Appeal in Reg v Harris (2000) 50 NSWLR 409. That concession required the Court to re-sentence the appellant itself, applying correct sentencing principles to the whole of the evidence.

On the question of objective criminality, the Court agreed with the provisional conclusion reached by O'Keefe J that the offences, and particularly the murder of Mr Watson, were of a very high order of heinousness. Sully J described the circumstances of Mr Watson's murder as "execution-like" and endorsed the view that a life sentence would have fallen within the parameters of previous sentences. The Court applied the test from Reg v Twala (1994), which requires that the worst-case category be reserved for offences featuring particular heinousness combined with an absence of mitigating facts going to the objective seriousness of the crime.

However, the Court accepted that the appellant was entitled to have certain subjective matters taken into account. Buddin J, in a brief separate observation, disagreed with Sully J's characterisation of those subjective features as having "minimal effect," emphasising in particular that the guilty pleas entered at arraignment warranted a meaningful discount. Buddin J noted that while some offences are so heinous that no discount for a guilty plea is appropriate, the primary judge had not so concluded and the Court of Criminal Appeal did not either. The appeals against the firearms sentences were dismissed.

Orders Made

  • Leave granted to appeal against all four sentences passed in the court below
  • Appeals against the two murder sentences allowed; those sentences quashed
  • In lieu of the quashed sentences, the appellant re-sentenced as follows:
  • For the murder of Mr Watson: imprisonment for 30 years commencing 24 February 1999 and expiring 23 February 2029, with a non-parole period of 25 years commencing 24 February 1999 and expiring 23 February 2024
  • For the murder of Mr O'Shea: imprisonment for 25 years commencing 24 February 1999 and expiring 23 February 2024, with a non-parole period of 23 years commencing 24 February 1999 and expiring 22 February 2022
  • Appeals against the sentences for the two firearms offences dismissed

Key Takeaways

  • Imposing a minimum term with an additional term of life imprisonment for murder was not authorised under section 431B of the Crimes Act 1900 (NSW), a point confirmed by the Court of Criminal Appeal in Reg v Harris (2000) and accepted by the Crown in this appeal.
  • Where a structural sentencing error is established, the Court of Criminal Appeal is required under section 6(3) of the Criminal Appeal Act 1912 (NSW) to determine for itself whether a more lenient sentence was warranted, effectively conducting a full re-sentencing exercise.
  • Characterising an offence as falling within the "worst case" category requires identification of features of very great heinousness combined with an absence of facts mitigating the objective seriousness of the crime, consistent with the test articulated in Reg v Twala.
  • A guilty plea entered upon arraignment to serious charges carries real significance as a mitigating factor; only in cases where the heinousness is so extreme that no discount can be countenanced will it be set aside, and that threshold is not lightly reached.
  • Buddin J, with the agreement of the Court on orders, noted that there would be merit in legislative provision permitting a court to fix a non-parole period where an offender is sentenced to life imprisonment, expressing sympathy for what the sentencing judge had endeavoured to achieve.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including section 431B (now repealed) and section 33A
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 61
- Criminal Appeal Act 1912 (NSW), section 6(3)

Cases
- The Queen v Pearce (1998) 194 CLR 610
- Reg v Harris (2000) 50 NSWLR 409
- Reg v Twala (unreported, NSWCCA, 4 November 1994)
- Reg v Dodd (1991) 57 A Crim R 349
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Simpson (2001) 53 NSWLR 704