AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 9 December 2011

R v Kirchner

[2011] NSWSC 1516

Homicide
CRIMINAL LAW SENTENCE PLEA OF GUILTY MURDER AIDED AND ABETTED AGGRAVATING AND MITIGATING FACTORS

Citation: R v Kirchner [2011] NSWSC 1516
Court: Supreme Court of New South Wales
Date: 9 December 2011
Judge(s): Schmidt J

Background

The offender pleaded guilty to the murder of Scott Bryan, on the basis that he had aided and abetted the killing rather than firing the fatal shot himself. The murder occurred in December 2008. The victim's body was discovered in June 2009 in a remote, vegetated area near a creek bed at Nelligen, where the co-accused lived. Death was caused by a shotgun wound to the head.

The offender initially denied any involvement when interviewed by police in 2009. After his arrest in Queensland in April 2010, he admitted being present at the time of the shooting but denied assisting with the burial. He later admitted, in a second interview in May 2011, to helping bury the victim's body the morning after the murder. His guilty plea was not entered until 19 October 2011, on the day the hearing was due to commence, and before a jury was empanelled.

The agreed facts established that shortly before the murder, the offender became aware that the co-accused intended to kill Scott Bryan. By his presence and willingness to assist if necessary, he aided and abetted the murder. It was not disputed that it was the co-accused, not the offender, who fired the shot.

  • Whether a sentence of life imprisonment was appropriate for an offender who was a principal in the second degree to murder
  • Whether the standard non-parole period of 20 years under s 54A of the Crimes (Sentencing Procedure) Act 1999 applied to an offence of aiding and abetting murder
  • What discount was appropriate to reflect the offender's late guilty plea and his past and future assistance to law enforcement under s 23 of the Act
  • Whether special circumstances existed to justify a longer balance of term than the statutory one-third ratio
  • How a victim impact statement could properly be taken into account in sentencing

Decision

Schmidt J was satisfied that a life sentence was not appropriate. The offender was a principal in the second degree whose culpability fell below that of the co-accused, and no significant aggravating circumstances raised the offence to the worst category of murder. Accordingly, the court did not impose the maximum sentence.

The court accepted the submission that the standard non-parole period of 20 years does not apply to offences of aiding and abetting murder, relying on the earlier authority of R v Aoun and Aoun v R. The standard non-parole period and maximum penalty nonetheless remained relevant guidepoints in fixing the sentence, consistent with the High Court's approach in Muldrock v The Queen.

Before discounts, Schmidt J assessed the appropriate head sentence at 16 years imprisonment. Two separate reductions were applied: one reflecting the utilitarian value of the guilty plea, and another reflecting the offender's past and future assistance to authorities under s 23 of the Act. The combined effect reduced the sentence to 8 years, 9 months and 18 days. The non-parole period was fixed at 6 years, commencing from the date of arrest on 23 April 2010.

On the victim impact statement, Schmidt J acknowledged the profound grief of the victim's mother, expressed in court. However, applying the well-settled approach confirmed in R v Tzanis and first established in R v Previtera, the court noted that an unsworn, untested victim impact statement cannot be taken into account in sentencing. The judge nonetheless conveyed personal sympathy to the victim's family from the bench.

Orders Made

  • The offender was convicted of the murder of Scott Bryan.
  • Sentenced to imprisonment with a non-parole period of 6 years, commencing 23 April 2010 and expiring 22 April 2016.
  • Balance of term of 2 years, 9 months and 18 days, commencing 23 April 2016 and expiring 9 February 2019.
  • The offender was made eligible for release on parole on 22 April 2016.
  • The firearm charge under the s 166 certificate was dismissed.

Key Takeaways

  • A principal in the second degree to murder, meaning a person present and willing to assist but who did not personally commit the act, carries the same maximum penalty as the principal offender, but their lesser degree of culpability is a relevant consideration in fixing the actual sentence.
  • The standard non-parole period of 20 years for murder does not apply to offences of aiding and abetting murder, following the line of authority in R v Aoun and confirmed by the Court of Criminal Appeal in Aoun v R; both the maximum penalty and the standard non-parole period nonetheless remain relevant benchmarks under Muldrock v The Queen.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, a court may reduce a sentence to reflect an offender's assistance to law enforcement, but the resulting sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.
  • An unsworn, untested victim impact statement cannot be taken into account in the sentencing exercise itself, applying the longstanding principle from R v Previtera as confirmed by a five-member bench of the Court of Criminal Appeal in R v Tzanis.
  • Where a guilty plea is entered on the day a hearing was due to commence, a discount is still available, but the utilitarian value of that plea is necessarily more limited than an early plea would attract.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 345
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2), 54A, 61(1)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Aoun [2006] NSWSC 800
- Aoun v R [2007] NSWCCA 292
- R v Dodd (1991) 57 A Crim R 349
- R v McGaw [2007] NSWDC 33
- R v Previtera (1997) 94 A Crim R 76
- R v Scott [2005] NSWCCA 152
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Tzanis [2005] NSWCCA 274
- SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249