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Court of Criminal Appeal 27 October 2005

PLEVAC v REGINA

[2005] NSWCCA 454

Homicide
CRIMINAL LAW MURDER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: PLEVAC v REGINA [2005] NSWCCA 454
Court: New South Wales Court of Criminal Appeal
Date: 27 October 2005
Judge(s): McClellan CJ at CL; Simpson J; Hoeben J

Background

The applicant had been convicted of the murder of his wife in circumstances involving a petrol attack outside her apartment building. A five-year-old child witnessed the attack. The deceased sustained burns to 90 per cent of her body and died on the same day. The applicant was twice convicted of the murder, the first conviction having been quashed on appeal and a retrial ordered. Following his second conviction, McInerney J sentenced him to life imprisonment.

The applicant subsequently sought redetermination of his life sentence under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, a statutory mechanism allowing certain prisoners serving fixed life terms to have their sentences reconsidered. James J redetermined the sentence and imposed a fixed term of 25 years with a non-parole period of 19 years, both commencing from September 1989.

The applicant then sought leave to appeal that redetermined sentence to the Court of Criminal Appeal, arguing it was manifestly excessive. Throughout the proceedings, including during the redetermination, the applicant continued to maintain his innocence despite having accepted the Crown's facts for the purposes of the redetermination hearing.

  • Whether the redetermined sentence of 25 years (with a 19-year non-parole period) was manifestly excessive for the murder of the applicant's wife.
  • Whether the sentencing judge at redetermination gave excessive weight to the applicant's continued maintenance of innocence in circumstances where there was no demonstrated need for community protection.
  • Whether, and in what circumstances, a failure to acknowledge guilt can legitimately increase a sentence rather than simply deprive the offender of a discount.
  • Whether fresh evidence of the applicant's developing serious vision impairment warranted intervention in the sentence.

Decision

The Court granted leave to appeal but dismissed the appeal, upholding the redetermined sentence. McClellan CJ at CL found the objective seriousness of the offence was extreme: a deliberate, planned petrol attack on the applicant's estranged wife, carried out in front of their young daughter, in a public building. Both previous sentencing judges had found aggravating features that fully justified a severe sentence.

On the question of maintained innocence, the Court accepted the applicant's argument in principle: a failure to acknowledge guilt should not, without more, operate to increase a sentence beyond its proper level. The proper role for such a consideration is to deny the offender a discount that an admission might otherwise attract, rather than to elevate the sentence above what the objective facts warrant. McClellan CJ at CL acknowledged the force of this argument by reference to the principle in Veen v The Queen (No 2), which cautions against using criminal history or other personal factors to increase a sentence beyond what the offence itself justifies.

However, the Court found that even applying this constraint, the sentence imposed by James J was not shown to be excessive. The objective features of the crime independently justified the sentence. McClellan CJ at CL indicated that, had the applicant acknowledged his guilt, he might have considered some reduction, but the applicant had not done so. The sentence was not shown to be manifestly excessive.

Simpson J agreed with the proposed orders and addressed the fresh evidence. The applicant had tendered affidavit evidence of a developing and potentially sight-threatening vision condition. While the Court accepted this evidence and acknowledged it would add to the hardship of imprisonment, it did not regard the condition as sufficient to warrant a reduction in or variation to the sentence. Hoeben J agreed with the orders proposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge should not use an offender's continued maintenance of innocence as a factor to increase a sentence above the level the objective circumstances of the offence warrant. Its proper role is confined to denying the offender any discount that an admission of guilt might otherwise attract.
  • Where a prisoner maintains innocence after conviction, the prospect of rehabilitation is uncertain, and this uncertainty is a legitimate consideration that affects prospects of rehabilitation as a sentencing factor, even if it cannot independently lift the sentence above its appropriate range.
  • A medical condition developed during imprisonment, even one that is serious and potentially debilitating, does not automatically warrant the Court of Criminal Appeal reducing or varying an otherwise appropriate sentence.
  • The redetermination mechanism under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 allows prisoners serving fixed life sentences to seek review, but the reviewing court will uphold the redetermined sentence where the objective gravity of the offence independently justifies it.
  • Accepting Crown facts for the purpose of a redetermination hearing is not the same as admitting guilt in the sentencing sense, and a court may treat continued protestations of innocence as relevant to rehabilitation even where the offender has formally accepted those facts.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1
- Crimes Act 1900 (NSW)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Everett, unreported, Court of Criminal Appeal, 13 December 1995
- R v MJR (2002) 54 NSWLR 368
- R v Rosevear [1999] NSWSC 732