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6
Court of Criminal Appeal 10 August 2011

RAAD v R

[2011] NSWCCA 138

Also reported as 220 A Crim R 471
HomicideTheft & propertyFirearms & weapons
CRIMINAL LAW FELONY MURDER DURING ARMED ROBBERY NO LINK BETWEEN OFFENDER AND OFFENCE SENTENCING POLICY

Citation: RAAD v R [2011] NSWCCA 138
Court: Court of Criminal Appeal, NSW
Date: 10 August 2011
Judge(s): McClellan CJ at CL, Adams J, Buddin J

Background

The applicant pleaded guilty to armed robbery and murder arising from an incident on 3 September 2001, in which a security guard was shot and killed during a struggle at a Punchbowl car park. The applicant had used a disguise, gloves, and a radio scanner, leaving no fingerprints, traceable DNA, or identifying evidence. He was never suspected and law enforcement had no prospect of apprehending him.

Seven years later, on 7 February 2008, the applicant walked into a police station entirely voluntarily and confessed, saying he could not live with what he had done. He had since demonstrated significant personal transformation, including remorse, rehabilitation, and changed circumstances from a difficult early life marked by family breakdown, homelessness, and substance abuse.

At first instance, the applicant was sentenced to 14 years imprisonment for murder with a non-parole period of 10 years and 6 months, concurrent with a fixed 5-year term for armed robbery. He sought leave to appeal only the murder sentence, arguing the discount for voluntary confession was inadequate and that special circumstances warranted a reduced ratio between total sentence and non-parole period.

  • Whether the sentencing judge gave sufficient weight to the applicant's voluntary disclosure of guilt, described in the authorities as the "Ellis factor" (after R v Ellis (1986) 6 NSWLR 603), when reducing the sentence
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify varying the standard statutory ratio between the overall term and the non-parole period

Decision

The Court of Criminal Appeal unanimously granted leave to appeal and allowed the appeal on the first ground, finding that the discount applied for the applicant's voluntary surrender and confession was insufficient. The majority held that this was an exceptional case: the applicant had no connection to suspicion, no prospect of detection, and came forward solely from conscience after seven years. The "Ellis factor" warranted a more substantial reduction than the sentencing judge had applied.

On objective seriousness, the Court accepted the sentencing judge's findings that the murder fell within the category of felony murder, committed during an armed robbery with a loaded firearm, without a specific intention to kill or cause grievous bodily harm. That finding did not render the offence at the lowest end of the range; the applicant chose to commit the robbery with a loaded weapon, safety catch off and finger on the trigger.

On special circumstances, the Court divided. Adams J considered there were special circumstances justifying a variation of the statutory ratio. Buddin J, with whom McClellan CJ at CL agreed, concluded there were no special circumstances, accepting the primary judge's reasoning that the proposed non-parole period was already the minimum consistent with the gravity of the offence despite the powerful subjective factors in the applicant's favour.

The Court resentenced the applicant to a total term of 12 years with a non-parole period of 9 years, commencing 7 February 2008. The armed robbery sentence was not disturbed, as no application for leave to appeal had been brought in respect of it.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed at first instance quashed
  • Substituted sentence: non-parole period of 9 years commencing 7 February 2008, expiring 6 February 2017, with a balance of term of 3 years expiring 6 February 2020
  • Applicant eligible for parole on 6 February 2017

Key Takeaways

  • The "Ellis factor," the leniency afforded to an offender who voluntarily confesses to an undetected offence, carries significant weight and can justify a substantial sentence reduction, particularly where there is no prospect the offender would ever have been identified or apprehended.
  • A felony murder conviction does not require an intention to kill or cause grievous bodily harm, but the absence of such intention does not automatically place the offending at the lower end of the range for murder. Objective seriousness remains fact-specific.
  • Under the Crimes (Sentencing Procedure) Act 1999, special circumstances must be demonstrated to justify departing from the standard ratio between total sentence and non-parole period. Powerful subjective factors alone are not necessarily sufficient to establish special circumstances where the non-parole period is already fixed at the minimum the offence requires.
  • The Court of Criminal Appeal declined to express any view on the sentence for armed robbery where no application for leave to appeal had been brought in respect of that offence, reinforcing that the Court's jurisdiction on sentence appeals is confined to the grounds properly before it.
  • In approaching resentencing involving complex and interrelated considerations, the Court applied the caution expressed in R v Markarian (2005) 228 CLR 357 against reducing sentencing to a purely arithmetical exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 97(2) (aggravated armed robbery)
- Crimes (Criminal Procedure) Act 1999 (NSW), s 23
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Ellis (1986) 6 NSWLR 603 (foundational authority on voluntary disclosure discount)
- Ellis v R (1993) 68 A Crim R 449
- R v Markarian (2005) 228 CLR 357; Makarian v The Queen [2005] HCA 25
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Henry (1999) 46 NSWLR 346
- Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194
- Gore and Hunter v R [2010] NSWCCA 330
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Baxter v The Queen (2007) 173 A Crim R 284
- Douar v The Queen (2005) 159 A Crim R 154
- Power v The Queen (1974) 131 CLR 623
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR
- R v Barker [2001] NSWSC 295; R v Baldacchino [1998] NSWSC 723; R v Harris [2000] NSWSC 285; R v MHN [1998] NSWSC 533; R v JSK [2004] NSWSC 470; R v Bawden (unreported, NSWSC 30 October 1992); R v McCabe (unreported, NSWCCA 14 October 1991)