Citation: R v Kirrlie Shane Wilson [2008] NSWSC 238
Court: Supreme Court of New South Wales
Date: 4 April 2008
Judge(s): Howie J
Background
The offender was convicted by a jury of the murder of a man who had recently come into possession of a large sum of money obtained through an armed robbery. A co-offender, Spencer, learned of this and recruited the offender to steal the money from the deceased at his townhouse in the early hours of 11 January 2005. The offender in turn enlisted a second associate, Frazer, for physical support, and arrived at the premises armed with a loaded firearm.
During the confrontation, the deceased was pistol-whipped and sustained defence injuries. Two shots were fired, one striking the deceased in the forehead at close range. The offender and Frazer left without obtaining any money. Shortly after leaving, the offender repeatedly apologised to Frazer for what had occurred.
At trial, the offender gave evidence that the gun discharged accidentally during a struggle. The jury rejected this account and convicted him of murder. His two co-offenders, Spencer and Frazer, were convicted only of manslaughter and sentenced to 13 years (non-parole 9.5 years) and 11 years (non-parole 7.5 years) respectively.
Legal Issues
- What facts could properly be found for sentencing purposes, given the jury's verdict on murder versus the co-offenders' manslaughter convictions?
- Whether the offender, rather than Frazer, was the person who fired the fatal shot.
- How the applicable standard non-parole period of 20 years for murder should be applied, having regard to aggravating factors, the offender's background, and his attempts at rehabilitation.
- Whether parity with the co-offenders' significantly shorter sentences warranted a departure from the standard non-parole period.
- Whether special circumstances existed to justify reducing the non-parole period below the statutory proportion.
Decision
Howie J was satisfied beyond reasonable doubt that the offender fired the fatal shot. The jury's verdict of murder against the offender, contrasted with manslaughter convictions for the co-offenders, was in the court's view consistent only with a finding that the offender was the shooter. The offender's own admission at trial that he was responsible for the shooting, even while contesting the circumstances, supported this conclusion.
The court found that the offender had been assaulting the deceased with the weapon immediately before firing, and that the shot was fired at very close range to the deceased's forehead with intent to kill. Howie J accepted the more favourable interpretation that the offender had lost his temper rather than committed a cold-blooded execution, noting that the offender had not gone to the premises intending to kill.
On the question of seriousness, the court characterised the offence as slightly above mid-range. The robbery was premeditated, conducted in the deceased's own home, involved a loaded firearm, and was carried out in company. These were aggravating features at common law. The court acknowledged the offender's deprived and violent upbringing, his cessation of amphetamine use approximately eight years prior, and his genuine pre-arrest rehabilitation efforts, all of which were taken into account in mitigation.
Howie J acknowledged that the sentence would leave the offender serving roughly twice as long as his co-offenders. However, the court attributed this disparity to the co-offenders' good fortune in being convicted of manslaughter rather than murder, combined with the absence of any standard non-parole period for manslaughter offences. No special circumstances were found to justify reducing the non-parole period below the statutory ratio.
Orders Made
- The offender was sentenced to a total term of 26.5 years' imprisonment, comprising a non-parole period of 20 years and a balance of term of 6.5 years.
- The sentence commenced on 19 May 2006, with the non-parole period expiring on 18 May 2026.
Key Takeaways
- A jury's differentiated verdicts, murder against one accused and manslaughter against another arising from the same incident, can support a factual finding at sentencing that the murder-convicted offender was the person who directly caused death.
- Where a defence submission seeks findings of fact "most favourable to the offender" consistent with the verdict, the Supreme Court here rejected that as a misstatement of the applicable law.
- Significant sentencing disparity between co-offenders does not automatically warrant a departure from the standard non-parole period, where the disparity flows from different offences of conviction rather than from any arbitrary judicial choice.
- The standard non-parole period of 20 years for murder under the Crimes (Sentencing Procedure) Act 1999 applied even where the court identified genuine mitigating factors, including a seriously disadvantaged upbringing and pre-arrest rehabilitation efforts.
- Amendments to the aggravating factors provisions in s 21A that commenced in January 2008 did not apply retrospectively to an offender convicted before that date, pursuant to Schedule 2 of Act 50 of 2007.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A and Schedule 2 of Act 50 of 2007
Cases:
- R v Frazer, R v Spencer [2007] NSWSC 1449