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Supreme Court 23 March 2005

R v EM

[2005] NSWSC 212

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIMINAL LAW REMARKS ON SENTENCE MURDER ASSAULT WITH A DANGEROUS WEAPON

Citation: R v EM [2005] NSWSC 212
Court: Supreme Court of New South Wales
Date: 23 March 2005
Judge(s): James J

Background

The prisoner, Sophear Em, was convicted and sentenced for eight offences arising from two separate armed incidents in January 2002. The first series of offences (the "Logozzo offences") occurred in the early hours of 7 January 2002, when the prisoner and an accomplice, both masked and armed, forced their way into a family home at Cecil Hills. The two men confronted the occupants at gunpoint and attempted to rob the household.

During a physical struggle on the stairs, the prisoner discharged a pistol twice. The first shot struck the homeowner, Joseph Logozzo, in the chest, causing a fatal wound. The second shot struck Mrs Marianne Logozzo in the hand as she ran toward her husband. Mr Logozzo was pronounced dead at Liverpool Hospital in the early hours of the same morning.

The second series of offences (the "Kress offences") occurred ten days later, on 17 January 2002. The prisoner, again armed with a dangerous weapon, robbed five individuals at a separate location: a couple, their two adult children, and a friend of the family. The prisoner pleaded guilty to all five robbery charges before the jury was empanelled for his murder trial.

  • What facts relevant to sentencing could be established to the required standard, consistently with the jury's verdicts?
  • What was the prisoner's role in the Logozzo offences, particularly whether he was the armed intruder with the pistol who fired the fatal and injuring shots?
  • How should the principles of totality and accumulation of sentences apply across eight serious offences spanning two separate criminal episodes?
  • What non-parole period was appropriate for the murder conviction, taking into account the full sentencing regime?

Decision

James J was required to make factual findings consistent with the jury's verdicts and in accordance with the principles from R v Isaacs, as endorsed by the High Court in Olbrich v The Queen and Cheung v The Queen. Those principles require that adverse findings of fact on sentencing be established beyond reasonable doubt.

His Honour found that the prisoner was the man armed with the pistol during the Logozzo offences, and accordingly that he had fired the two shots: the first killing Mr Logozzo and the second wounding Mrs Logozzo. These findings were treated as consistent with the jury's verdicts across all three Logozzo counts.

In structuring the sentences, James J applied the totality principle, using partly cumulative and partly concurrent terms to reflect the serious and discrete nature of each criminal episode without producing an unjust aggregate. Where a sentence's parole period would otherwise be absorbed into the non-parole period of a later sentence, fixed terms were imposed rather than sentences with separate non-parole and parole components.

The murder sentence was imposed with a non-parole period and parole period, structured so that the parole period equalled one quarter of the total aggregate sentence. The earliest date of parole eligibility was fixed at 19 May 2029.

Orders Made

  • Fixed term of 2 years for firing a firearm with disregard for the safety of Marianne Logozzo, commencing 20 May 2002 and expiring 19 May 2004.
  • Fixed term of 12 years for each of the five armed robbery offences (the Kress offences), commencing 20 May 2003 and expiring 19 May 2015, all five terms to be served concurrently.
  • Fixed term of 10 years for assaulting Joseph Logozzo with intent to rob whilst armed with a dangerous weapon, commencing 20 May 2013 and expiring 19 May 2023.
  • Term of 25 years for the murder of Joseph Logozzo, commencing 20 May 2013 and expiring 19 May 2038, with a non-parole period of 16 years commencing 20 May 2013 and expiring 19 May 2029.
  • Total aggregate: 36 years imprisonment with a non-parole period of 27 years; earliest parole eligibility 19 May 2029.

Key Takeaways

  • Sentencing courts in NSW must make factual findings consistent with the jury's verdict and cannot find adverse facts against a convicted offender unless satisfied beyond reasonable doubt, applying the principles confirmed in R v Isaacs, Olbrich v The Queen, and Cheung v The Queen.
  • Where multiple serious offences span two separate criminal episodes, the totality principle requires that sentences be structured as partly cumulative and partly concurrent to reflect the distinct gravity of each episode without producing a crushing aggregate.
  • Fixed terms of imprisonment are appropriate where a parole period would, in practical effect, be absorbed entirely within the non-parole period of a subsequent sentence, as imposing a formal parole period in those circumstances serves no meaningful function.
  • Murder under s 19A of the Crimes Act carries a maximum of life imprisonment, while armed robbery under s 97(2) carries a maximum of 25 years; both maxima informed the upper bounds of the sentences imposed here.
  • A non-parole period of approximately two thirds of the total sentence was imposed in this case, with the overall structure producing an earliest parole eligibility 27 years into the aggregate term.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 19A (murder), 93G(1)(c) (firing a firearm with disregard for safety), 97(2) (robbery and assault whilst armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act (NSW)
- Evidence Act (NSW)

Cases:
- Cheung v The Queen (2001) 209 CLR 1
- Olbrich v The Queen (1999) 199 CLR 270
- R v Isaacs (1997) 41 NSWLR 374
- R v Jacobs and Mehajer [2004] NSWCCA 462
- R v Hearne (2001) 124 A Crim R 451
- R v Henry (1999) 46 NSWLR 346
- R v Mills (NSWCCA, 3 April 1995, unreported)