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Supreme Court 26 March 2003

R v Grant

[2003] NSWSC 215

Homicide
CRIMINAL LAW SENTENCING MURDER

Citation: R v Grant [2003] NSWSC 215
Court: Supreme Court of New South Wales, Common Law Division (Criminal)
Date: 26 March 2003
Judge(s): Dunford J

Background

In the early hours of 28 November 1999, Robert John Grant shot and killed Ross Shersingh in the carpark of the Newtown Hotel in Lightning Ridge. Grant had been drinking heavily that evening, left the nearby Bowling Club after midnight, retrieved a rifle and a sawn-off rifle from his caravan, and walked to within approximately six metres of where Shersingh stood with two friends. He fired a single shot that struck Shersingh in the chest, killing him. He then chased one of the other men, Daniel Bradford, around a nearby vehicle and fired at him with the sawn-off rifle, missing him.

Grant was convicted of murder and of shooting Bradford with intent to murder at a first trial in 2001. The murder conviction was subsequently set aside on appeal due to a misdirection on intoxication, and a retrial was ordered. The conviction for shooting with intent to murder stood.

At the retrial, Grant pleaded not guilty to murder but guilty to manslaughter, conceding he fired the fatal shot deliberately but arguing his intoxication negated the intent required for murder. The jury rejected that argument and convicted him of murder, leaving Dunford J to resentence him.

  • Whether Grant held the requisite intent for murder (intent to kill, intent to cause grievous bodily harm, or reckless indifference to human life), given his level of intoxication at the time of the offence.
  • Whether a guilty plea to the lesser charge of manslaughter, which narrowed the issues at trial, warranted a sentencing discount under s 22A of the Crimes (Sentencing Procedure) Act 1999.
  • What the appropriate sentence was, particularly in light of the principle that a sentence following a successful appeal and retrial should not exceed the sentence imposed at the original trial.

Decision

Dunford J was satisfied beyond reasonable doubt that Grant intended to kill Shersingh. His Honour reasoned that the deliberate sequence of acts, going to the caravan, collecting two loaded firearms, approaching the group, raising the rifle, pointing it at the deceased's chest, and firing, was irreconcilable with a mere intent to cause grievous bodily harm. The near-immediate pursuit of Bradford and pointing the sawn-off rifle at his head confirmed that interpretation.

Although Grant was intoxicated, the court found he was an experienced heavy drinker with a high tolerance for alcohol. He was able to move purposefully, play pool, hold coherent conversations, and later, when spoken to by police, act and speak rationally. His intoxication did not, in the court's view, negate the intent to kill established by his deliberate actions.

On the question of a sentencing discount for the manslaughter plea, Dunford J gave it limited weight. While the plea narrowed issues compared with the first trial, the Crown still needed to lead substantial evidence about Grant's drinking and the surrounding circumstances to prove the deliberate nature of the acts and thus the intent for murder. The partial utilitarian value of the plea was acknowledged but not treated as a significant mitigating factor.

The court applied the established principle from R v Gilmore that a sentence following a successful appeal should not exceed the original sentence. Dunford J found no basis to impose a lesser sentence than at the first trial and replicated the original terms.

Orders Made

  • Grant was sentenced to imprisonment for 18 years for the murder of Ross Shersingh, with a non-parole period of 13 years, both periods deemed to have commenced on 28 November 2001.
  • When combined with the existing five-year fixed term for shooting at Bradford with intent to murder (imposed at the first trial and undisturbed on appeal), the total combined sentence amounted to 20 years' imprisonment with a non-parole period of 15 years.
  • The earliest eligible parole date was set at 27 November 2014.

Key Takeaways

  • A court may find intent to kill even where a jury's verdict does not specify the basis for the murder conviction, provided the sentencing judge is satisfied beyond reasonable doubt of that intent from the surrounding facts.
  • Heavy intoxication does not automatically negate intent for murder where the offender demonstrated purposeful, sequential conduct and was assessed by witnesses, including experienced police officers, as capable of rational function.
  • Under the principle affirmed in R v Gilmore (1979) 1 A Crim R 416, a sentence imposed after a successful appeal and retrial should not ordinarily exceed the original sentence, though there is equally no automatic entitlement to a reduction.
  • A guilty plea to a lesser charge (here, manslaughter) may attract some recognition under s 22A of the Crimes (Sentencing Procedure) Act 1999 if it genuinely narrows issues at trial, but the benefit may be limited where the Crown is still required to lead substantial evidence to prove the more serious charge.
  • In sentencing for murder, Dunford J expressly identified retribution, general and personal deterrence, and protection of the community as the primary considerations, with rehabilitation contingent on the prisoner addressing his alcohol addiction.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A

Cases:
- R v Gilmore (1979) 1 A Crim R 416