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12
Court of Criminal Appeal 16 November 2006

ASLETT v REGINA

[2006] NSWCCA 360

Sexual offencesAssault & violenceHomicideTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE MURDER AGGRAVATED SEXUAL ASSAULT ARMED ROBBERY AGGRAVATED KIDNAPPING

Citation: Aslett v Regina [2006] NSWCCA 360
Court: New South Wales Court of Criminal Appeal
Date: 16 November 2006
Judge(s): McClellan CJ at CL; James J; Hoeben J

Background

The appellant was sentenced by Wood CJ at CL in the Supreme Court following convictions on nineteen counts, including murder, two counts of aggravated sexual assault in company, multiple counts of armed robbery, specially aggravated kidnapping, aggravated carjacking, obtaining a benefit by deception, and larceny of motor vehicles. Nine additional offences were taken into account on Form 1 documents. All offences the subject of this sentencing were committed between May and August 2003.

The sentencing judge imposed a life sentence for the murder count. For the remaining counts on the Supreme Court indictment, a cumulative determinate sentence of 36 years with a non-parole period of 28 years was imposed. Those sentences were themselves made partly cumulative on a further set of serious sentences previously imposed in the District Court, which included multiple counts of sexual intercourse without consent and specially aggravated breaking and entering.

The appellant sought leave to appeal against the sentences imposed by Wood CJ at CL, contending in particular that the life sentence for murder was excessive and that the sentencing judge had erred in the approach taken to that count.

  • Whether a life sentence for murder was warranted where the sentencing judge himself found that the murder, considered in isolation, would not have warranted life imprisonment
  • Whether it was permissible, following Veen v The Queen (No 2) and the Court of Criminal Appeal's decision in R v McNaughton, to use the gravity of other offences (including prior convictions) to justify imposing a life sentence on a murder count that did not independently warrant one
  • Whether the principle of proportionality, which requires the upper boundary of a sentence to be set by the objective circumstances of the individual offence, was respected
  • Whether the overall sentence was manifestly excessive having regard to the applicant's criminal history, the s 21A aggravating factors, the principle of totality, and the question of ongoing danger to the community

Decision

Wood CJ at CL had expressly found that the murder offence, standing alone, would not have warranted a life sentence. Despite that finding, his Honour imposed life imprisonment by reference to the seriousness of the other offences being sentenced at the same time, and to the District Court sentences, which were described as "quite appalling." The Court of Criminal Appeal identified this approach as legally erroneous.

The court held that this approach was foreclosed by the Court of Criminal Appeal's own decision in R v McNaughton [2006] NSWCCA 242. In that case, Spigelman CJ (with whom the rest of the court agreed) interpreted the High Court's joint judgments in Veen (No 2) and Baumer as establishing that the principle of proportionality fixes the upper boundary of a sentence by reference to the objective circumstances of the offence in question, and that prior convictions or co-occurring offences cannot displace that boundary. The sentencing judge was therefore not entitled to use the appellant's other offences to justify a life sentence for a murder that would not, on its own, have attracted one.

On this basis, the court upheld the appeal against the murder sentence, quashed the life sentence, and re-sentenced the appellant for murder. The balance of the appeal was dismissed. The court noted that the replacement sentence, although substantial, was appropriate having regard to the appellant's history and the near-total absence of any mitigating personal circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal upheld in part; life sentence for the murder count quashed
  • Appellant re-sentenced for murder to a non-parole period of 22 years commencing 22 August 2022 and expiring 21 August 2044, with a balance of term of six years expiring 21 August 2050
  • Appeal otherwise dismissed

Key Takeaways

  • The principle of proportionality, as confirmed in Veen (No 2) and applied in McNaughton, requires the upper boundary of a sentence to be determined by the objective circumstances of the particular offence being sentenced, not by the gravity of other offences charged on the same indictment or by an offender's prior convictions.
  • A life sentence imposed for a murder count cannot be sustained where the sentencing judge himself found that the murder, considered in isolation, would not have warranted such a sentence.
  • The Court of Criminal Appeal confirmed that R v McNaughton [2006] NSWCCA 242 operates as a binding constraint: the seriousness of co-offending or a criminal record may legitimately influence sentence within the proportionate range, but cannot elevate a sentence beyond the ceiling set by the objective gravity of the index offence itself.
  • Upholding only that part of the appeal concerning the murder count, the court left the substantial determinate sentences for the other offences undisturbed, reflecting that the totality principle and the applicant's very serious criminal history warranted a lengthy overall sentence.
  • An extensive history of serious offending and an absence of mitigating personal circumstances remain relevant to the precise sentence imposed within the permissible range, even where they cannot extend that range beyond what the offence itself warrants.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Division 1A (standard non-parole periods) and s 21A (aggravating and mitigating factors)
- Crimes Act 1900 (NSW), including ss 18, 61JA, 97, 154C

Cases:
- Veen v The Queen (No 2) (1987) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242
- Mill v The Queen (1988) 166 CLR 59
- R v Henry (1999) 46 NSWLR 346
- R v Harris (2000) 50 NSWLR 409
- R v Previtera (1997) 94 A Crim R 462
- R v Bellamy [2005] NSWCCA 329; R v Berg [2004] NSWCCA 300; R v Blair (2005) 152 A Crim R 462; R v Bushara [2006] NSWCCA 8; R v Doolan [2006] NSWCCA 29; R v Fernando [2002] NSWCCA 28; R v Johnson [2004] NSWCCA 76; R v McQueeney [2005] NSWCCA 168; R v Sharma [2002] NSWCCA 142; R v Shankley [2003] NSWCCA 253; R v Wickham [2004] NSWCCA 193; R v Williams [2005] NSWCCA 99; Regina v Tadrosse [2005] NSWCCA 145; R v Jacobs and Mehajer (2004) 151 A Crim R 452; R v EM [2005] NSWSC 212; R v Mills (unreported, NSWCCA, 3 April 1995)