Citation: Marchant v Regina; Crawt v Regina [2006] NSWCCA 120
Court: New South Wales Court of Criminal Appeal
Date: 19 April 2006
Judge(s): Hulme J, Hidden J, Hall J
Background
Two men, referred to here as the first appellant and the second appellant, pleaded guilty in the Supreme Court to the murder of a man lured to Lane Cove River Park on 5 August 2002 under the pretence of a jewellery deal. The victim was shot twice in the head, with one shot administered at close range, and his belongings were stolen. The sentencing judge, Greg James J, described the killing as an execution, though the precise motive was never established.
Greg James J sentenced the first appellant (Marchant) to 38 years imprisonment with a non-parole period of 32 years, commencing 19 September 2002. The second appellant (Crawt) received 35 years with a non-parole period of 28 years, commencing 10 August 2002. Crawt's sentence also took into account three additional offences on a Form 1: a carjacking and two armed robbery-related offences committed in the days surrounding the murder.
Both men applied for leave to appeal against their sentences in the Court of Criminal Appeal.
Legal Issues
- Whether Marchant's sentence was manifestly excessive
- Whether the sentencing judge wrongly took into account charges for which Marchant had pleaded not guilty when assessing his rehabilitation prospects
- Whether the sentencing judge adequately reflected Crawt's contrition
- Whether the sentences properly distinguished between the two offenders' relative levels of culpability
- Whether Crawt's sentence included an unjustified additional component for the Form 1 offences
- Whether Crawt's overall sentence was manifestly excessive
Decision
Marchant's appeal. The Court found the sentencing judge was entitled to refer to the Form 1 offences in Crawt's proceedings for the limited purpose of assessing Marchant's prospects of rehabilitation, rather than treating them as aggravating factors in their own right. Greg James J had explicitly confined his use of that material and did not apply it more broadly. The Court accepted that the sentence, while sitting at the upper end of the applicable range for execution-type murders, remained within the sentencing discretion open to the judge given the multiple aggravating factors: use of a weapon, commission in company, prior convictions, conditional liberty at the time, and participation in planned criminal activity. The appeal against Marchant's sentence was dismissed.
Crawt's appeal. The Court took a different view here. Having considered the Form 1 offences and the overall structure of the sentence, the Court found error in the sentence imposed on Crawt. The primary concern was that the sentence did not properly reflect all relevant considerations in their correct proportions, including the significant weight owed to Crawt's contrition and the need to distinguish his culpability from Marchant's.
The Court quashed Crawt's original sentence and re-sentenced him to a non-parole period of 24 years commencing 10 August 2002, with a balance of term of six years, producing a total term of 30 years. This represented a meaningful reduction from the original 28-year non-parole period and 35-year total.
Orders Made
Marchant:
- Leave to appeal granted
- Appeal dismissed
Crawt:
- Leave to appeal granted
- Sentence imposed by Greg James J on 23 October 2003 quashed
- Crawt sentenced to imprisonment with a non-parole period of 24 years commencing 10 August 2002, and a balance of term of six years
Key Takeaways
- A sentencing judge may take into account co-offender Form 1 offences when assessing a separate offender's rehabilitation prospects, provided that use is expressly confined and does not operate as an aggravating factor in its own right.
- In dismissing Marchant's appeal, the Court of Criminal Appeal confirmed that a sentence at the upper limit of the applicable range is not, on that basis alone, manifestly excessive where multiple statutory aggravating factors are present.
- Differences in culpability between co-offenders who plead guilty to the same charge must be reflected in the structure and quantum of their respective sentences; a failure to adequately account for those differences can constitute error.
- Contrition is a relevant mitigating consideration at sentence, and a failure to give it sufficient weight may support appellate intervention.
- Upholding one co-offender's sentence while reducing another's illustrates that the Court of Criminal Appeal will examine each sentence individually, even where the underlying offence is the same.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including ss 97(1), 97(2), 154C(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(2), 37
Cases:
- Offer [2000] NSWSC 839
- Naismith [2000] NSWSC 1024
- Brewer [2001] NSWSC 99
- Hyland & Ors [2001] NSWSC 470
- Yates & Ors [2002] NSWCCA 520
- Fernando [2001] NSWSC 294
- Kalache [2002] NSWSC 507
- Penisini & Ors [2003] NSWSC 892; [2004] NSWCCA 339
- Morgan (1993) 70 A Crim R 368
- Lowe (1984) 154 CLR 606
- Veen (No 2) (1987-88) 164 CLR 465
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
- Doan (2000) 50 NSWLR 115