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32
Court of Criminal Appeal 11 September 2006

Apps v R

[2006] NSWCCA 290

HomicideTheft & propertyFirearms & weapons
CRIMINAL LAW PLEA OF GUILTY MURDER BY SHOOTING BREAK, ENTER AND STEAL STOLEN GUNS FORM 1 OFFENCE

Citation: Apps v R [2006] NSWCCA 290
Court: Court of Criminal Appeal, New South Wales
Date: 11 September 2006
Judge(s): Hunt AJA, Simpson J, Whealy J

Background

The applicant pleaded guilty in the Supreme Court to the murder of a man at Shark Creek, NSW, on 2 November 2003. He had used a stolen shotgun to shoot the deceased in the head at close range inside the deceased's home. A separate break, enter and steal offence (the theft of four guns from a nearby prawn farm in the weeks before the murder) was listed on a Form 1 to be taken into account at sentencing.

The sentencing judge, Newman AJ, imposed a total term of 27 years, comprising a non-parole period of 20 years and nine months and a balance of six years and three months. Two years of the non-parole period was attributed specifically to the Form 1 offence. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

Central to the appeal were the applicant's significant psychiatric circumstances. He suffered from a personality disorder with paranoid features, and the sentencing judge accepted that this condition was causally related to the commission of the offence.

  • Whether the sentencing judge erred in placing the offence above the mid-range of objective seriousness, principally by treating the intention to kill as an aggravating feature in isolation from the applicant's mental disorder
  • Whether, and to what extent, a mental disorder causally connected to the offence affects the weight given to general deterrence, specific deterrence, and community protection in sentencing
  • Whether the approach taken to the Form 1 offence (imposing a separate two-year component) was legally permissible, or whether the offence should simply have been taken into account in setting the overall sentence
  • Whether a departure from the standard non-parole period of 20 years for murder was warranted, and whether the late plea of guilty provided sufficient reason for that departure

Decision

Objective gravity and the role of intent: Simpson J, with whom Whealy J agreed, held that the sentencing judge erred by treating the intention to kill as elevating the offence above the mid-range without adequately balancing it against the applicant's personality disorder and its causal connection to the offence. Hunt AJA, in a separate judgment, added that while an intention to kill is plainly relevant to objective gravity (since the standard non-parole period must apply across the full spectrum of mental states that can constitute murder), it is not an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. The intention to kill and the mental disorder that caused or contributed to it must be assessed together through the instinctive synthesis required in sentencing. Once that balance was struck, the Court of Criminal Appeal found the offence sat at approximately the mid-range of objective gravity.

Departure from the standard non-parole period: The court held that even a mid-range finding does not automatically produce a sentence equal to the standard non-parole period. The applicant's significant mental disorder, given its causal link to the offence, justified reducing the weight ordinarily placed on general deterrence. Specific deterrence and community protection retained some relevance, but the court considered that the length of the sentence and evidence that the impact of the personality disorder would diminish over time meant community protection was also of lesser weight than usual.

Plea of guilty and discount: The court accepted the sentencing judge's 25% discount for the plea of guilty, notwithstanding that the plea was entered late. The Court found the late timing was adequately explained, and that the plea itself constituted a sufficient reason to depart downward from the standard non-parole period.

Form 1 offence: The court found that the sentencing judge erred in imposing what amounted to a separate two-year component for the Form 1 break, enter and steal offence. The correct approach was to take that offence into account as part of the overall sentencing exercise rather than to impose a distinct sentence referable to it. The Court of Criminal Appeal corrected this by incorporating the Form 1 offence into the revised sentence without identifying a separate component.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; original sentence quashed
  • In substitution, the applicant was sentenced (taking into account the Form 1 offence) to a non-parole period of 13 years and 6 months, commencing 14 November 2003 and expiring 13 May 2017, with a balance of term of four years and six months, commencing 14 May 2017 and expiring 13 November 2021

Key Takeaways

  • An intention to kill is directly relevant to the objective gravity of a murder for standard non-parole period purposes, but it must be assessed alongside any mental disorder causally connected to the offence, not treated in isolation as a standalone aggravating element.
  • Under the instinctive synthesis approach to sentencing confirmed in Markarian v The Queen, competing indicators of objective gravity (such as the use of a firearm at close range on one hand, and a causally relevant paranoid personality disorder on the other) must be weighed together rather than treated as discrete items.
  • Where a mental illness or disorder is causally connected to the commission of the offence, general deterrence is properly given reduced weight, though specific deterrence and community protection remain considerations to be assessed on the particular facts.
  • A mid-range finding on objective gravity does not require a court to impose the standard non-parole period; the standard non-parole period functions as a guidepost or benchmark, and a plea of guilty can independently constitute a sufficient reason to depart from it.
  • The correct treatment of a Form 1 offence is to take it into account in setting the overall sentence; identifying a discrete period of imprisonment as attributable to the Form 1 offence constitutes an error in principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 18, 19A, 105A, 112, 113, 117
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A, 33, 34, 44, 54A, 54B; Part 3 Divisions 1–3; Part 4 Divisions 1 and 1A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Markarian v The Queen [2005] HCA 25; 79 ALJR 1048
- R v Engert (1995) 84 A Crim R 67
- R v Fahda [1999] NSWCCA 267
- R v Israil [2002] NSWCCA 255
- R v Letteri [1992] NSWCCA (18 March 1992)
- R v Previtera (1997) 94 A Crim R 76
- R v SLD [2003] NSWCCA 310; 58 NSWLR 589
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Wong v The Queen (2001) 207 CLR 584