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Supreme Court 7 April 2006

R v CB; R v IM

[2006] NSWSC 261

Assault & violenceHomicideTheft & property
SENTENCE FORM 1 MATTERS ONE OFFENDER ON CONDITIONAL LIBERTY STANDARD NON PAROLE PERIODS APPLIED TO EACH OFFENCE PLEAS OF GUILTY

Citation: R v CB; R v IM [2006] NSWSC 261
Court: Supreme Court of New South Wales
Date: 7 April 2006
Judge(s): Buddin J

Background

Two offenders, referred to as CB and IM, appeared for sentencing following guilty pleas to murder and to maliciously inflicting grievous bodily harm with intent. Both offences arose from the same incident on 10 August 2004 at Mayfield, in the Newcastle area, during which one victim, Garry Sansom, was killed and another, Gavin Atkin, suffered serious injuries.

The deceased, Garry Sansom, had no prior connection to either offender and was not the intended target. Gavin Atkin, who had been supplying amphetamines from his flat, was the apparent focus of the attack. A number of additional offences, including larceny of a motor vehicle and property belonging to Atkin, were placed before the court on Form 1 documents to be taken into account at sentencing.

Each offender had been in continuous custody from the date of his arrest. CB was arrested on 10 August 2004 and IM on 29 August 2004. Their pleas of guilty were entered ahead of the trial date, with IM entering pleas on 16 December 2005 and CB on 27 January 2006, though CB's counsel had signalled the likely pleas at an earlier directions hearing on 14 December 2005.

  • What sentences were appropriate for each offender, having regard to the standard non-parole periods applicable to murder and malicious infliction of grievous bodily harm with intent under the Crimes (Sentencing Procedure) Act 1999?
  • What discount, if any, should be allowed for each offender's guilty plea, and at what stage were those pleas entered?
  • How should the assistance provided by one offender to authorities be reflected in the sentence?
  • How should the fact that one offender was on conditional liberty at the time of the offences affect the sentence?
  • How should the parity principle be applied, given the different circumstances and culpability of the two offenders?
  • How should the multiple sentences be structured and accumulated to produce a just overall result?

Decision

Buddin J applied the standard non-parole periods prescribed by the Crimes (Sentencing Procedure) Act 1999 as reference points for each offence. The court examined each offender's subjective circumstances separately, including their histories of drug use, personal backgrounds, and the timing and utility of their guilty pleas.

CB received some credit for his guilty plea, though it was entered relatively late. The court also took into account CB's assistance to authorities, which justified a meaningful reduction in his sentence. An additional Form 1 matter, a malicious wounding offence involving a baseball bat on 23 July 2004, was taken into account when sentencing CB for the grievous bodily harm count.

IM's sentence was higher than CB's, reflecting his greater culpability, the fact that he was on conditional liberty at the time of the offences, and the absence of the assistance to authorities that CB had provided. The court applied the parity principle carefully to explain the differential between the two sentences, ensuring consistency without producing unjust disparity.

For both offenders, fixed terms were imposed for the grievous bodily harm offence, with the longer murder sentences accumulated upon them. The court described the crimes as violent and callous, noting that the death of Mr Sansom was entirely without justification and that the community's expectation that human life be protected required salutary penalties.

Orders Made

CB:
- Grievous bodily harm with intent (including Form 1 matters): fixed term of 7 years, commencing 10 August 2004, expiring 9 August 2011
- Murder: non-parole period of 13 years, total term of 18 years, commencing 10 August 2006; non-parole period expiring 9 August 2019, total term expiring 9 August 2024
- Total effective non-parole period: 15 years; total effective term: 20 years
- Eligible for release on parole: 9 August 2019

IM:
- Grievous bodily harm with intent (including Form 1 matters): fixed term of 8 years, commencing 29 August 2004, expiring 28 August 2012
- Murder: non-parole period of 15 years and 6 months, total term of 21 years and 6 months, commencing 28 February 2007; non-parole period expiring 28 August 2022, total term expiring 28 August 2028
- Total effective non-parole period: 18 years; total effective term: 24 years
- Eligible for release on parole: 28 August 2022

Key Takeaways

  • Standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 functioned as legislative reference points for both the murder and the grievous bodily harm with intent offences, with the court adjusting from those benchmarks based on each offender's individual circumstances.
  • Assistance provided to authorities was a significant mitigating factor, producing a meaningful sentence reduction for CB compared to IM, and the parity principle was used to justify and explain the differential between the two sentences rather than to equalise them artificially.
  • Being on conditional liberty at the time of the offences was an aggravating factor that contributed to IM receiving a longer sentence than CB.
  • Where multiple serious offences are sentenced together, a fixed term for the lesser offence accumulated with a longer parole-eligible sentence for the principal offence can produce a structured, proportionate result across the total effective period.
  • Guilty pleas entered in advance of a trial date attract a discount, but the extent of that discount is affected by the stage at which the plea is entered and the circumstances in which it came about.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), including s 33 (maliciously inflicting grievous bodily harm with intent) and s 23A (substantial impairment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act (NSW)

Cases:
- A-G's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146
- AT v Regina [2005] NSWCCA 410
- Cameron v The Queen (2002) 187 CLR 65
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1996-97) 189 CLR 295
- R v AGR (CCA(NSW), 24 July 1998, unreported)
- R v AJP (2004) 150 A Crim R 575
- R v Blair (2005) 152 A Crim R 462
- R v Coleman (1990) A Crim R 306
- R v Dang [2005] NSWCCA 430
- R v Darwiche [1999] NSWCCA 293
- R v Engert (1995) 84 A Crim R 67
- R v Hammoud (2000) 118 A Crim R 66
- R v Henry (1999) 46 NSWLR 346
- R v MA (2004) 145 A Crim R 434
- R v NP [2003] NSWCCA 195
- R v Previtera (1997) 94 A Crim R 76
- R v Rich [2000] NSWCCA 448
- R v Sangalang [2005] NSWCCA 171
- R v Simpson (2001) 53 NSWLR 704
- R v Sukkar [2006] NSWCCA 92
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Waqa (No 2) [2005] NSWCCA 33
- R v Way (2004) 60 NSWLR 168
- R v Weldon & Carberry (2002) 136 A Crim R 55
- R v Wickham [2004] NSWCCA 193