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Supreme Court 13 June 2008

REGINA v FARMER

[2008] NSWSC 581

Sexual offencesAssault & violenceHomicidePublic order & justice offences
CRIMINAL LAW SENTENCING KIDNAPPING ATTEMPTED MURDER WHETHER OFFENCE WITHIN WORST CATEGORY NON

Citation: REGINA v FARMER [2008] NSWSC 581
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 13 June 2008
Judge(s): Hall J

Background

The offender was convicted by jury on 15 May 2008 of three offences, all committed on 9 November 2005 at a residential property in Northmead. The victim, a young woman, had returned home from TAFE College that afternoon. The offender had no known prior association with the victim or her family, and no motive based on personal grievance was established.

The evidence showed the victim was found by police on the floor of a detached garage, unconscious, severely injured, and unrecognisable from head wounds. A fuel smell was present on and around her, electrical cords had been tied to her wrist and placed across her chest, and the house itself was on fire when emergency services arrived. The Crown case was circumstantial, relying on forensic and DNA evidence from the scene together with evidence of the offender's conduct and movements following the offences.

The three counts on the indictment were: kidnapping with intent to obtain sexual gratification (s.86(1)(b) Crimes Act 1900), attempted murder by causing grievous bodily harm with intent to murder (s.27 Crimes Act 1900), and maliciously damaging a dwelling house by fire with intent to endanger life (s.198 Crimes Act 1900). The sentencing hearing ran across numerous sitting days in April and May 2008.

  • What factual findings, consistent with the jury's verdicts, should underpin the sentences for each count?
  • What was the objective seriousness of each offence, and whether any count fell within the worst category of offending?
  • What aggravating factors applied to the offences?
  • How should the sentences for three serious offences be accumulated, and what effect did the totality principle have on the overall sentence structure?
  • What was the appropriate ratio of non-parole period to the balance of the term for each sentence?

Decision

Hall J conducted a detailed factual assessment, noting that the jury's verdicts established the offender's presence and guilt but left unresolved questions of degree relevant to culpability. The sentencing findings had to be made beyond reasonable doubt and had to be consistent with those verdicts.

The court assessed the objective seriousness of all three offences. The attempted murder count in particular attracted significant weight given the nature of the attack, the victim's severe and permanent injuries (including brain damage rendering her unable to recall the events), the use of a weapon (fibro cutters located in the garage), the binding of the victim, and the subsequent setting alight of the house in which she was left. The absence of any prior relationship or apparent motive was also a significant feature of the facts.

In determining how the sentences should run, the court applied the totality principle to ensure the aggregate sentence was not crushing while still reflecting the cumulative criminality of three distinct and serious offences. The court adjusted the commencement date of the first sentence to 1 August 2006, eight months before 1 April 2007, to give partial credit for a parole period the offender had served in respect of an earlier matter.

The court justified the proportions of the non-parole periods to the total sentences on two grounds: the need for exemplary punishment, and the absence of evidence demonstrating any rehabilitation need that would warrant longer parole periods.

Orders Made

  • Count 1 (kidnapping, s.86(1)(b)): Non-parole period of 5 years and 6 months commencing 1 August 2006, expiring 31 January 2012; balance of term 1 year and 9 months, expiring 31 October 2013.
  • Count 3 (arson with intent to endanger life, s.198): Non-parole period of 12 years commencing 1 August 2009, expiring 31 July 2021; balance of term 4 years, expiring 31 July 2025.
  • Count 2 (attempted murder, s.27): Non-parole period of 14 years commencing 1 August 2012, expiring 31 July 2026; balance of term 4 years and 6 months, expiring 31 January 2031.
  • Aggregate: Total effective non-parole period of 20 years (1 August 2006 to 31 July 2026); total effective head sentence of 24 years and 6 months (1 August 2006 to 31 January 2031).
  • Earliest eligible parole date: 31 July 2026.

Key Takeaways

  • Where a jury's verdict establishes guilt but does not resolve all facts relevant to culpability, the sentencing judge must make those findings independently, to the criminal standard of proof, consistently with the verdicts returned.
  • The totality principle requires a court imposing accumulated sentences for multiple serious offences to assess whether the overall effect of the sentences is proportionate to the total criminality involved, and to adjust commencement dates accordingly.
  • A sentencing court may justify a higher ratio of non-parole period to total sentence by reference to the need for exemplary punishment and the absence of evidence supporting a longer parole period for rehabilitation purposes.
  • The Supreme Court treated the combination of a violent physical attack, binding of the victim, sexual offending, and deliberate arson of the dwelling as a serious accumulation of aggravating features bearing on objective seriousness.
  • Under s.578A of the Crimes Act 1900, the court withheld the victim's name throughout the sentencing remarks given that one count involved a prescribed sexual offence, notwithstanding that the victim's identity had been widely reported in connection with the other counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss. 27, 86(1)(b), 198, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Callaghan v Regina [2006] NSWCCA 58
- Chaplin v The Queen (2006) 160 A Crim R 86; [2006] NSWCCA 40
- Cheung v The Queen [2001] 209 CLR 1
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Berg [2004] NSWCCA 300
- Regina v Falls [2004] NSWCCA 335
- Regina v Harkin (1989) 38 A Crim R 296
- Regina v Kalache [2000] NSWCCA 2; (2000) 111 Crim R 152
- Regina v King (2004) 150 A Crim R 409
- Regina v Mitchell & Gallagher [2007] NSWCCA 296
- Regina v Newell [2004] NSWCCA 183
- Regina v Olbrich (1999) 199 CLR 270
- Regina v Previtera (1997) 94 A Crim R 76
- Regina v SAE (CCA, unreported, 3 April 1997)
- Regina v Slack [2004] NSWCCA 128
- Regina v Twala (CCA, unreported, 4 November 1994)
- Regina v Way (2004) 60 NSWLR 168
- Veen v Regina (No 2) (1988) 164 CLR 465
- Weininger v The Queen (2003) 212 CLR 629