Citation: R v Norman; R v Olivieri [2007] NSWSC 142
Court: Supreme Court of New South Wales, Common Law Division
Date: 5 March 2007
Judge(s): Hidden J
Background
The two offenders were convicted at trial of the murder of a Sydney solicitor at his home office in Petersham on 6 April 2004. The first offender, an accountant and company director, had defrauded the deceased of approximately $83,500 by diverting cheques intended for the Taxation Office into his own trust account. When the deceased discovered the fraud and confronted the accountant, the accountant arranged to have him killed.
The second offender, a maintenance worker and longtime friend of the first, was engaged to carry out the killing. He flew from Queensland to Sydney using a ticket in another person's name, shot the deceased four times in his office, and returned to Queensland on a ticket in the first offender's name. The deceased's wife and young children were at home at the time; his wife ran to the office after hearing the shots and found her husband dying on the floor.
The first offender faced sentencing for both the murder (as accessory before the fact) and for the earlier fraud offence (cheating and defrauding as a director). The second offender faced sentencing for murder as the principal offender.
Legal Issues
- What were the appropriate sentences for each offender, given their different levels of culpability?
- Whether the maximum sentence of life imprisonment was called for in either case.
- How to reflect the first offender's additional fraud conviction, and whether the murder sentence should be partly cumulative on it.
- Whether special circumstances existed in either case to justify adjusting the standard ratio between the non-parole period and the head sentence.
Decision
Hidden J concluded that the murder was a planned, premeditated killing, conceived and organised by the first offender for his own benefit, specifically to conceal his fraud. It fell well above the middle range of objective seriousness, significantly beyond the level that attracts the standard non-parole period of twenty years for murder in the mid-range. The court did not impose life sentences but was satisfied that heavy determinate sentences, ensuring neither offender could be released until old age, adequately served the public interests in retribution and deterrence.
The court recognised that the two offenders carried different levels of culpability. The first offender, as the planner and instigator of the murder, received a higher sentence than the second, who executed the killing but received no significant reward. Although the second offender had a prior criminal record (primarily drug-related), it contained no entries for violence and was treated as of little significance. The first offender maintained his innocence and no psychological disorder was identified in either man.
On the fraud charge, the court imposed a partly cumulative sentence on the first offender, with the murder sentence commencing two years into custody rather than from the date of initial arrest. No non-parole period was set for the fraud sentence, as it would be overtaken by the much longer non-parole period for the murder. The court declined to find special circumstances in either case; in fact, the non-parole periods were set at a higher proportion of the head sentences than is typical, on the basis that lower non-parole periods would not adequately reflect the seriousness of the offending.
Orders Made
Norman (accessory before the fact and fraud offender):
- Cheating and defrauding as a director: 3 years' imprisonment, commencing 17 August 2004 and expiring 16 August 2007; no non-parole period set.
- Murder: 35 years' imprisonment, comprising a non-parole period of 29 years (commencing 17 August 2006, expiring 16 August 2035) and a balance of term of 6 years (expiring 16 August 2041); eligible for parole 16 August 2035.
Olivieri (principal offender):
- Murder: 33 years' imprisonment, comprising a non-parole period of 28 years (commencing 3 August 2004, expiring 2 August 2032) and a balance of term of 5 years (expiring 2 August 2037); eligible for parole 2 August 2032.
Key Takeaways
- A premeditated murder planned by one offender for his own benefit, to suppress exposure of a fraud, was treated as well above the mid-range of objective seriousness, justifying non-parole periods substantially exceeding the standard twenty-year benchmark.
- Different roles in a joint murder enterprise can warrant meaningfully different sentences: the planner and instigator received a longer sentence than the principal who carried out the killing without significant financial reward.
- Where a related offence (here, fraud) is the very motive for a murder, a partly cumulative sentence may be appropriate, even though the fraud and murder are causally connected.
- No special circumstances were found in either case; the court held that the non-parole periods needed to be a higher-than-usual proportion of the head sentences to reflect the gravity of the criminality, rather than to serve the usual purpose of allowing an extended period of supervised parole.
- Heavy determinate sentences, rather than life imprisonment, were considered sufficient to meet the public interest in retribution and general deterrence, provided they ensured neither offender could be released until well into old age.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 176A (cheating and defrauding as a director)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Harris (2000) 50 NSWLR 409
- R v Chung [1999] NSWCCA 33
- Aslett v R [2006] NSWCCA 360
- R v Garforth (CCA, unreported, 23 May 1994)
- R v Fernando [1999] NSWCCA 66
- R v Miles [2002] NSWCCA 276
- R v Glasby (2000) 115 A Crim R 465
- R v Kalajzich (1997) 94 A Crim R 41
- R v Merritt (2004) 59 NSWLR 557