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Court of Criminal Appeal 26 July 2006

SATORRE v REGINA

[2006] NSWCCA 298

Homicide
CRIMINAL LAW MURDER WHETHER APPROPRIATE DISCOUNTS GIVEN PLEA OF GUILTY PAST ASSISTANCE FUTURE ASSISTANCE

Citation: Satorre v Regina [2006] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 26 July 2006
Judge(s): McClellan CJ at CL, Kirby J, Hoeben J

Background

The appellant pleaded guilty to murder and was sentenced by Studdert J in the Supreme Court to 16 years' imprisonment with a non-parole period of 12 years. The murder arose from a planned acid attack on a victim at his home in December 2002. The victim died on 2 January 2003 from multiple organ failure following ingestion and inhalation of hydrochloric acid.

The appellant's role was not as a direct attacker. He provided and drove the vehicle that transported the two assailants to and from the victim's home, and waited nearby during the attack. He was aware his accomplices intended to throw acid on the victim to permanently disfigure him, but was not aware they intended to kill the victim. He participated for a promised payment of $1,000 and the prospect of continued drug supply from an associate who was also his drug supplier.

The sentencing judge applied a starting point of 32 years and then applied a 50 percent discount to account for the guilty plea, past assistance to authorities, contrition, and a willingness to give evidence against co-offenders. A drug supply offence was also taken into account as a scheduled matter under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the 50 percent discount applied by the sentencing judge was appropriate, having regard to the guilty plea, past and future assistance to authorities, contrition, and the need to serve the sentence in protection
  • Whether the starting point of 32 years was within the appropriate range for the degree of criminality involved
  • Whether the overall sentence of 16 years was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds.

On the question of the discount, the Court acknowledged that the 50 percent figure was substantial and required careful scrutiny. The Court accepted that the appellant had provided valuable assistance to authorities and had expressed genuine contrition. However, the Court was not persuaded that the quality of the assistance was so extraordinary that the sentencing judge erred in concluding that 50 percent was the appropriate overall discount. The Court found the sentencing judge had given appropriate consideration to each of the relevant subjective factors.

On the starting point, the Court described the crime as brutal and either close to, or possibly within, the worst category of offending. The attack was premeditated, deliberate, and involved the planned infliction of severe pain through the use of acid. The Court referred to other sentencing decisions involving serious offences causing injury and death, including R v Irani and R v Tran, but noted that comparable cases are instructive rather than determinative, given differences in the nature of each criminal enterprise and the personal circumstances of each offender.

The Court concluded that a starting point of 32 years was within the appropriate sentencing range and that no error had been demonstrated. The appeal was dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 50 percent discount for guilty plea, past and future assistance, contrition, and protection-custody considerations can be appropriate in a murder case, but only where the combination of factors, taken together, justifies that magnitude of reduction.
  • A planned acid attack causing death was characterised as either close to, or possibly within, the worst category of murder, even where the offender played a supporting rather than direct role.
  • Comparable sentencing decisions involving serious injury and death are instructive in calibrating a starting point, but cannot dictate the outcome in any individual case given differences in offence characteristics and offender circumstances.
  • Where an offender provides assistance to authorities and commits to giving evidence against co-offenders, the quality and significance of that assistance must be assessed carefully; assistance of a high order does not automatically translate into a discount beyond what the sentencing judge has assessed as appropriate.
  • The totality principle applied to require the sentencing judge to impose a sentence reflecting the combined criminality of the murder charge and a scheduled drug supply offence, assessed together rather than separately.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- R v Gallagher (1991) 23 NSWLR 220
- R v Irani [2002] NSWCCA 153
- R v Mostyn [2004] NSWCCA 97
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Tran [2002] NSWSC 394
- R v Way (2004) 60 NSWLR 168
- R v Waqa (No 2) [2005] NSWCCA 33