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Supreme Court 31 August 2012

R v AMOS

[2012] NSWSC 1021

HomicideDrugsTheft & property
CRIMINAL LAW SENTENCING

Citation: R v Amos [2012] NSWSC 1021
Court: Supreme Court of New South Wales
Date: 31 August 2012
Judge: Hall J

Background

The offender was convicted after trial of murdering Richard Thurman on 14 February 2009 at Ambarvale, near Campbelltown. A jury found that he had shot the deceased eight times with a .22 calibre semi-automatic rifle. The Crown established that the shooting was deliberate and carried out with an intention to kill.

The killing arose from a cannabis debt dispute. A co-accused, Rafter, was owed money by the deceased from a cannabis supply arrangement and faced threats from his own supplier if the debt remained unpaid. Rafter recruited the offender to recover the money, promising him $2,000 if the job was successful. A third person, Wiggins, drove both men to and from the scene.

The plan involved Rafter entering the deceased's home to seek repayment while the offender waited outside armed with a loaded, silenced rifle. After shooting the deceased, the offender and Rafter searched the home and took cannabis, cash, laptops, and guitars. The proceeds were later divided among the group.

  • Whether the offence was committed as part of planned or organised criminal activity under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, making it an aggravating factor
  • Whether the offence was committed for financial gain under s 21A(2)(o) of the Act
  • Whether the offence was committed in the home of the victim under s 21A(2)(eb) of the Act
  • What overall sentence and non-parole period was appropriate given all relevant factors, including the standard non-parole period of 20 years for murder

Decision

Hall J found that several statutory aggravating factors applied. The offence was committed in the home of the victim under s 21A(2)(eb), which the court treated as significant given the particular vulnerability and violation associated with being killed in one's own home. The offence was also committed for financial gain under s 21A(2)(o), with the offender standing to receive $2,000 for carrying out the shooting and additionally sharing in stolen property taken from the deceased's home.

On the question of planned or organised criminal activity under s 21A(2)(n), the court accepted that the offence was part of such activity. The planning was evident from the recruitment of the offender, the pre-arranged cover story, the selection and use of a silenced firearm, and the coordination of roles among three participants. However, the court did not make a separate finding of premeditated intention to kill as part of a joint criminal enterprise, noting there was no evidence that Rafter knew the offender intended to shoot the deceased.

Hall J declined to find special circumstances that would warrant adjusting the statutory ratio between the non-parole period and the balance of term. The offender's psychologist report indicated at least a moderate risk of recidivism, an anti-social personality disorder, and an above-average predisposition toward substance abuse. Any prospects for rehabilitation were described as guarded.

Taking all relevant factors into account, including the standard non-parole period of 20 years for murder under the Crimes (Sentencing Procedure) Act 1999, the court imposed a total sentence of 28 years with a non-parole period of 21 years. The longer non-parole period above the standard was recorded as reflecting the two aggravating factors of the home invasion and the planned nature of the criminal activity.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 28 years
  • Non-parole period: 21 years, commencing 3 February 2010 and expiring 2 February 2031
  • Balance of term: 7 years, commencing 3 February 2031 and expiring 2 February 2038
  • Earliest eligibility for release to parole: 2 February 2031

Key Takeaways

  • Under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999, where a non-parole period exceeds the standard non-parole period, the court is required to record which aggravating factors justify the departure. Hall J identified the home invasion and the planned criminal activity as those factors.
  • Planned or organised criminal activity under s 21A(2)(n) does not require proof that all participants shared an intention to kill. The planning and coordination of roles among the offender, Rafter, and Wiggins was sufficient to engage the aggravating factor.
  • A conviction arising from a contract-style arrangement, where the offender is promised payment to recover a debt by force, engages the financial gain aggravating factor under s 21A(2)(o), even where the promised payment is contingent on success.
  • The court sentenced on the basis that the sentence had been running from the date of arrest, backdating the commencement of the term to 3 February 2010 in recognition of pre-sentence custody.
  • Guarded prospects of rehabilitation, combined with an assessed moderate risk of recidivism and diagnosed anti-social personality disorder, were insufficient to support a finding of special circumstances that would alter the standard non-parole to parole ratio.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(2)(n), 21A(2)(o), 54B(4)

Cases
- Adanguidi v R [2006] NSWCCA 404
- Apps v R [2006] NSWCCA 290
- Burrell v The Queen [2007] NSWCCA 65
- Crown v Garfoth (23 May 1994, NSWCCA, unreported)
- Madden v R [2011] NSWCCA 254
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v AEM & Ors [2002] NSWCCA 58
- R v Gordon (1994) 71 A Crim R 459
- R v Previtera (1997) 94 A Crim R 76
- R v Shepherd [2006] NSWSC 799
- R v Smith [2000] NSWCCA 202
- R v White [2005] NSWSC 667
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Versluys v R [2008] NSWCCA 76