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Court of Criminal Appeal 16 June 2008

Ta'ala v R

[2008] NSWCCA 132

Homicide
CRIMINAL LAW AND PROCEDURE SENTENCE TWO COUNTS OF MURDER EXTREME VIOLENCE CUMULATION

Citation: Ta'ala v R [2008] NSWCCA 132
Court: New South Wales Court of Criminal Appeal
Date: 16 June 2008
Judge(s): Campbell JA, Grove J, Johnson J

Background

The appellant pleaded guilty in the Supreme Court to two counts of murder arising from events on 28 May 2002 at Sutherland. He beat the first victim to death with a cricket bat following a dispute connected to drug dealing. He then killed the second victim, a woman who had witnessed the first murder, expressly to prevent her from reporting his crime to police. The second killing involved stabbing and blunt force injuries inflicted in a meter room.

The sentencing judge imposed determinate sentences: 26 years for the first murder (non-parole period of 19 years 6 months) and 35 years for the second murder (non-parole period of 26 years 6 months), with the second sentence commencing at the expiry of the first. The combined result was a total term of 47 years with an aggregate non-parole period of 38 years 6 months, representing approximately 81 percent of the total term.

The appellant sought an extension of time and leave to appeal against the severity of the sentences. The Court granted both, noting that the magnitude of the sentences supplied sufficient reason to set aside any procedural time bar.

  • Whether each individual sentence was manifestly excessive in the circumstances
  • Whether the sentencing judge erred in finding special circumstances (which allow departure from the standard ratio of non-parole period to total term) or in failing to make such a finding
  • Whether an arithmetical error meant the non-parole period on the second count was three months too long
  • Whether the effect of cumulation produced an overall non-parole period exceeding 75 percent of the total term contrary to the sentencing judge's evident intention, and whether that should be corrected

Decision

The Court dismissed the ground of manifest excess for the individual sentences. Grove J found that the sentencing judge had properly assessed the objective gravity of both offences. The second murder was characterised as falling in the worst category, committed deliberately to silence a witness to the first, and the imposition of determinate rather than life sentences remained within the sentencing discretion available.

On special circumstances, the Court found no error in the sentencing judge's approach. Although there were circumstances that might have permitted a finding of special circumstances, the sentencing judge was not obliged to make one, and his decision not to do so was not infected by legal error.

The Court accepted that an arithmetical error had produced a non-parole period on the second count three months longer than the 75 percent statutory ratio required. However, the more significant problem was that the cumulation of the two sentences produced an aggregate non-parole period of approximately 81 percent of the total term, when all indicators pointed to the sentencing judge intending to maintain the 75 percent ratio. The Court treated the effect of cumulation itself as a special circumstance justifying a reduction in the non-parole period on the second count.

By reducing the non-parole period on the second count, the Court recalibrated the earliest parole eligibility date to fall at 75 percent of the overall 47-year term.

Orders Made

  • Application for extension of time and leave to appeal against sentence granted
  • Appeal allowed in part
  • The non-parole period of 26 years 6 months on the second count (murder of Tammy Lee MacKenzie) was quashed and replaced with a non-parole period of 23 years 3 months, commencing 29 May 2014 and expiring 28 August 2037
  • Earliest date of eligibility for consideration of parole fixed at 28 August 2037

Key Takeaways

  • Where cumulation of consecutive sentences produces an aggregate non-parole period exceeding 75 percent of the total term, and all indications suggest the sentencing judge did not intend that result, the Court of Criminal Appeal may treat the cumulation effect itself as a special circumstance warranting adjustment to the non-parole period.
  • A sentencing judge who identifies circumstances capable of supporting a special circumstances finding is not obliged to make one; the absence of such a finding is not in itself an error of law.
  • Determinate sentences remain available even where an offence is assessed as falling in the worst category, provided the sentencing judge exercises the discretion to impose them rather than life imprisonment.
  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, a non-parole period ordinarily represents 75 percent of the total term; reasons are expected when that ratio is exceeded, and omitting them, particularly where cumulation is ordered, may indicate the departure was overlooked rather than intended.
  • A deliberate killing designed to eliminate a witness to an earlier murder is a seriously aggravating feature; the Court confirmed it warranted assessment as among the gravest instances of the offence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)

Cases
- R v Dunn [2006] NSWCCA 12
- R v Folbigg (2005) 152 A Crim R 35
- R v Lo [2003] NSWCCA 313