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Supreme Court 15 December 2011

R v COUSENS

[2011] NSWSC 1375

Homicide
CRIMINAL LAW MURDER SENTENCING

Citation: R v Cousens [2011] NSWSC 1375
Court: Supreme Court of New South Wales
Date: 15 December 2011
Judge(s): RS Hulme J

Background

A jury convicted the offender of the murder of a man who had been in a relationship with the offender's estranged wife. The victim was last seen alive at a caravan park in Batemans Bay on 28 May 1990. His body was discovered three weeks later in nearby bushland, bearing evidence of multiple shotgun wounds.

The Crown case was entirely circumstantial. The offender had recently recovered possession of a semi-automatic shotgun the day before the victim disappeared. He had expressed an intense desire to reconcile with his wife, and on the day of the victim's disappearance had again asked her whether they could reunite. After the victim's disappearance, the offender was seen to destroy a photograph of the victim and stated words to the effect that he did not kill him but wished he had.

The offender was convicted by a jury in June 2011, more than two decades after the offence. He pleaded not guilty and maintained that position throughout, expressing no remorse. The sentencing proceedings before Hulme J followed the conviction.

  • What sentencing standards applied to a murder committed in 1990, given that the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999 only applied to offences committed on or after 1 February 2003?
  • What weight should be given to the delay between the offence and sentencing, and to the objective seriousness of the offending?
  • What was the appropriate total sentence and non-parole period, having regard to the applicable historical standards?

Decision

Hulme J confirmed that the standard non-parole period of 20 years prescribed under the Crimes (Sentencing Procedure) Act 1999 for murder had no application to an offence committed in 1990. Instead, the offender was entitled to be sentenced in accordance with the sentencing standards prevailing at and around the time of the offence.

The Court drew on two Judicial Commission publications covering sentenced homicides from 1990 to 2001. The earlier publication, covering 1990 to 1993, was the more relevant benchmark. It recorded that the typical sentence for murder under s 19A was a minimum term of 12 years and an additional term of 6 years, making a total of 18 years. Significantly, that study found no clear difference in sentence distribution between guilty and not guilty pleas.

Hulme J identified several factors that increased the objective seriousness of this offending. The killing involved premeditation, an intent to kill, and considerable callousness in its execution. The offender received some moderation of sentence on account of the significant delay between the offence and the prosecution. His age and the unlikely prospect of reoffending in the same way were also noted, though there was no evidence of remorse or active rehabilitation.

Weighing all these factors against the historical sentencing range, the Court imposed an 18-year sentence with a non-parole period of 14 years, both to commence from the date the offender was taken into custody.

Orders Made

  • The offender sentenced to imprisonment for 18 years, including a non-parole period of 14 years, both commencing 5 February 2010.

Key Takeaways

  • Where a murder was committed before 1 February 2003, the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999 does not apply; the sentencing court must instead apply the standards current at the time of the offence.
  • Judicial Commission publications on sentenced homicides provided the primary benchmark for identifying applicable historical sentencing norms in this case.
  • Significant delay between a murder and prosecution may moderate the sentence imposed, even where the offender has not assisted authorities or expressed remorse.
  • Premeditation, a clear intent to kill, and callousness in the execution of a killing are aggravating features that can justify a non-parole period above the historical median, even where the total head sentence falls at the median.
  • Consistency with the jury's verdict is a constraint on the sentencing judge's fact-finding: where the verdict necessarily resolves a disputed factual matter adversely to the offender, the sentencing court is bound by that resolution.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19A, 44, 54A

Cases:
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- PWB v R [2011] NSWCCA 84
- R v MJR (2002) NSWLR 368; 130 A Crim R 481
- R v Todd (1982) 2 NSWLR 517
- R v Wood [2008] NSWSC 1273
- Veen v The Queen (No 2) (1988) 164 CLR 465