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Supreme Court 14 October 2004

Regina v Plevac

[2004] NSWSC 916

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER LIFE SENTENCE REDETERMINATION PRISONER MURDERED HIS WIFE

Citation: Regina v Plevac [2004] NSWSC 916
Court: Supreme Court of New South Wales
Date: 14 October 2004
Judge(s): James J

Background

The applicant, a man convicted of murdering his wife, applied to have his life sentence redetermined under Schedule 1 of the Crimes (Sentencing Procedure) Act. He had been continuously in custody since 22 September 1989, the date of the offence. Although he continued to maintain his innocence, he accepted for the purposes of the application that the Crown's statement of facts accurately described the case on which he was convicted.

The facts as accepted by the court were that the applicant, who had separated from his wife and was subject to an apprehended domestic violence order, doused her in petrol and set her alight in the fourteenth-floor lift lobby of her apartment building. Their five-year-old daughter witnessed the attack. The victim died later that day from burns covering 90 per cent of her body. The applicant had suffered serious burns himself months earlier and, in the days before the murder, told family members he wanted his wife to feel the same pain he was feeling.

The applicant was originally convicted at a 1990 trial before Finlay J, who imposed a life sentence. A retrial ordered by the Court of Criminal Appeal resulted in a second conviction in 1995, and McInerney J again imposed a life sentence in August 1996. The current application sought the substitution of that indefinite sentence with a fixed term and non-parole period.

  • Whether the life sentence imposed on the applicant should be replaced with a specified term of imprisonment and a non-parole period under Schedule 1 of the Crimes (Sentencing Procedure) Act
  • What term and non-parole period were appropriate, having regard to the objective seriousness of the offence, the applicant's subjective circumstances, his progress in prison, and the comparable cases referred to by the parties

Decision

James J found the offence to be one of extreme objective gravity. The court accepted that the applicant had a clear intention to kill and had engaged in deliberate premeditation and planning. The attack was carried out with petrol the applicant had purchased shortly beforehand, in circumstances where he knew from personal experience how agonising burns injuries were, and it was committed in front of the couple's young daughter.

The court compared the case to two other life sentence redeterminations, R v Everett and R v Rosevear, in which determinate sentences of 25 years (minimum 18 years) and 20 years (minimum 15 years) were respectively imposed. James J found the present offence more serious than both, noting that in neither of those cases had the court found a specific intent to kill, nor had the victim been subjected to suffering the offender knew would be agonising, nor had the offence been committed in front of a child.

Taking into account the objective facts, the applicant's personal circumstances, his conduct and progress while in custody, and the requirements of Schedule 1, the court set a total term of 25 years with a non-parole period of 19 years. The court emphasised that expiry of the non-parole period would make the applicant eligible for release, not entitled to it, as release remained subject to the Parole Board's assessment.

Orders Made

  • The life sentence was redetermined.
  • A specified term of 25 years was set, commencing 22 September 1989 and expiring 21 September 2014.
  • A non-parole period of 19 years was set, commencing 22 September 1989 and expiring 21 September 2008.
  • 21 September 2008 was specified as the earliest date on which the applicant would be eligible for release on parole.

Key Takeaways

  • Under Schedule 1 of the Crimes (Sentencing Procedure) Act, prisoners serving indefinite life sentences may apply to have a fixed term and non-parole period substituted, with the sentencing court considering objective seriousness, subjective features, and comparable cases.
  • A finding of specific intent to kill, combined with deliberate premeditation, prior personal knowledge of the suffering caused by burns, and commission of the offence in the presence of a child, placed this murder at a higher level of objective gravity than the comparable cases cited.
  • The Supreme Court confirmed the principle from R v Bugmy (1990) 169 CLR 525 that the non-parole period must represent the minimum term that justice requires the prisoner to serve, not merely a mechanical fraction of the total sentence.
  • Expiry of a non-parole period under this regime gives rise only to parole eligibility; actual release depends on a further, separate determination by the Parole Board.
  • In setting a longer specified term than the comparable cases, the court drew meaningful distinctions based on the specific intent to kill and the particular cruelty of inflicting a form of suffering the applicant knew, from his own experience, to be agonising.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW) (including the former ss 19 and 19A)
- Crimes (Sentencing Procedure) Act (NSW), Schedule 1

Cases
- R v Bugmy (1990) 169 CLR 525
- R v Bush (unreported, NSWSC, 25 September 1992)
- R v Everett (unreported, NSWCCA, 13 December 1995)
- R v Peacock (unreported, NSWSC, 24 April 1992)
- R v Rosevear [1999] NSWSC 732
- R v Stephens [1999] NSWCCA 80
- R v Whitmore [1999] NSWCCA 75