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Supreme Court 29 July 2011

R v Michael Peter Christiansen

[2011] NSWSC 840

HomicideDrugsFirearms & weapons
CRIMINAL LAW SENTENCE MURDER LATE GUILTY PLEA POSSESS FIREARM SUPPLY COCAINE

Citation: R v Michael Peter Christiansen [2011] NSWSC 840
Court: Supreme Court of New South Wales
Date: 29 July 2011
Judge(s): Latham J

Background

The offender was engaged by a man named Tran to provide protection at a meeting intended to resolve a drug debt dispute. The deceased, Paul Elliott, had purchased a large commercial quantity of methylamphetamine from Tran but disputed its quality. The offender attended the meeting knowing there was a real prospect the deceased would be killed, and had helped prepare a large metal box intended, if the dispute was not resolved, to remove the body.

The deceased was murdered on 6 December 2008. The offender had also been tasked with storing a large quantity of methylamphetamine (approximately 2,985 grams) and, as part of his reward, was introduced to Tran's uncle who imported cocaine. He was later found to have had possession of a separate quantity of cocaine (327.58 grams) as well as an unauthorised shortened firearm.

On 8 November 2010, the offender pleaded guilty to murder, possession of a shortened firearm, supply of a large commercial quantity of methylamphetamine, and supply of a commercial quantity of cocaine. A further 21 offences were listed on a Form One to be taken into account on sentence.

  • Whether the indictment required amendment to reflect the correct Law Part Code for the methylamphetamine supply charge, and whether the offender was prejudiced by the original misdescription
  • Whether the indictment amendment could be made under the Criminal Procedure Act 1986 without causing injustice
  • What sentence was appropriate for murder, having regard to the objective gravity of the offence, the late guilty plea, assistance provided to authorities, remorse, and rehabilitation prospects
  • Whether special circumstances existed to justify altering the standard ratio of non-parole period to balance of term

Decision

Indictment amendment: The quantity of methylamphetamine charged (2,985.5 grams) clearly exceeded the large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985, yet the original indictment stated an incorrect Law Part Code corresponding to the lower commercial quantity offence. Latham J held that an incorrect Law Part Code does not determine the basis for sentencing where the aggravating circumstance merely increases the maximum penalty rather than converting a lesser offence into a greater one. The amendment did not cause injustice because the offender had always understood he was to be sentenced for supply of a large commercial quantity. Leave was granted under s 20 of the Criminal Procedure Act 1986 to correct the code, and the offender adhered to his guilty plea following the amendment.

Objective seriousness of the murder: The offence was assessed as above the mid-range of objective seriousness. The offender had contracted to provide protection knowing the deceased might be killed, assisted in planning for body disposal, and was motivated by financial reward including proceeds from drug sales. These factors elevated the gravity of the offending beyond a spontaneous act of violence.

Subjective matters and discounts: The offender received some discount for his late guilty plea, though the lateness of the plea limited that discount. Latham J also applied a discount for assistance provided to authorities. The offender's remorse was accepted as genuine and his prospects of rehabilitation were considered sound, both of which were taken into account in mitigation.

Special circumstances: Latham J declined to find special circumstances. The fact that this was the offender's first custodial sentence was not considered compelling, and the argument that harsh custodial conditions warranted an altered proportion was rejected as double counting. The length of the sentence would in any event produce a balance of term sufficient for reintegration.

Orders Made

  • Count 1 (murder): Non-parole period of 15 years and 3 months from 16 March 2011, expiring 15 June 2026; balance of term of 5 years and 9 months, expiring 15 March 2032
  • Count 2 (possess shortened firearm): Fixed term of 1 year and 8 months from 16 December 2008, expiring 15 August 2010
  • Count 3 (supply large commercial quantity of methylamphetamine): Non-parole period of 5 years from 16 December 2008, expiring 15 December 2013; balance of term of 1 year and 7 months, expiring 15 July 2015
  • Count 4 (supply commercial quantity of cocaine): Non-parole period of 2 years and 3 months from 16 December 2008, expiring 15 March 2011; balance of term of 2 years and 2 months, expiring 15 May 2013
  • Offender eligible for release on 16 June 2026
  • Drugs the subject of the offences to be destroyed, except the 2,985.5 grams of methylamphetamine the subject of Count 3

Key Takeaways

  • An incorrect Law Part Code on an indictment does not determine the basis for sentencing where the aggravating circumstance in question increases the maximum available penalty without converting the charge into a different offence entirely. Provided the offender is not misled about the maximum penalty applying to their plea, an amendment to correct the code does not constitute injustice, as confirmed by reference to Warby v R [2007] NSWCCA 173.

  • Murder committed in a commercial context, where the offender knowingly assumed a role that contemplated killing for financial reward, is assessed above the mid-range of objective seriousness.

  • A late guilty plea to murder still attracts a discount, but the extent of that discount is limited by the lateness of the plea.

  • No finding of special circumstances was made despite the offender serving his first custodial sentence. The Supreme Court held that the length of the overall sentence would produce a balance of term adequate for reintegration purposes without altering the statutory proportion.

  • Partial accumulation of sentences was warranted both to reflect the totality of the offending and to account for the cocaine supply charge, which was unrelated to the events giving rise to the murder.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Procedure Act 1986 (NSW), ss 20, 21
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Warby v R [2007] NSWCCA 173