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Supreme Court 19 October 2012

R v Marcus John Lee

[2012] NSWSC 1240

Homicide
CRIMINAL LAW SENTENCE MURDER WHETHER SPECIAL CIRCUMSTANCES MADE OUT

Citation: R v Marcus John Lee [2012] NSWSC 1240
Court: Supreme Court of New South Wales
Date: 19 October 2012
Judge: Bellew J

Background

The offender pleaded guilty in the Local Court to the murder of a woman he knew from a prior relationship, committed on 17 April 2011 at Islington, NSW. The deceased had travelled by taxi to the street where the offender was living in the early hours of that morning and was never seen alive again. She was reported missing by her mother two days later.

In the weeks following the killing, the offender made a series of admissions to friends and family members, telling them he had "done a bad thing," that he had placed a body in the boot of his car, and that he intended to hand himself in. He surrendered to police on 9 May 2011 and participated in a recorded interview. He had been in custody from that date.

The Crown did not press for a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, and Bellew J was satisfied that provision did not apply. Sentence proceedings proceeded accordingly.

  • Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
  • How to approach the standard non-parole period of 20 years for murder following the High Court's guidance in Muldrock v R
  • What weight to give the offender's early guilty plea, voluntary surrender, and pre-surrender admissions as mitigating factors
  • The significance of the disposal of the deceased's body as an aggravating factor
  • Whether the absence of any explanation for the offending affected the assessment of rehabilitation prospects
  • Whether special circumstances existed under s 44(2) of the Sentencing Procedure Act to justify a longer-than-standard parole period

Decision

Bellew J applied the Muldrock methodology, identifying all relevant aggravating and mitigating factors and reaching an overall sentencing judgment rather than commencing from any fixed benchmark. His Honour identified the disposal of the deceased's body as a significant aggravating feature, treating it as conduct designed to conceal the crime and prevent the body from being found by those who loved her. The evidence also established that the offender had intended to kill the deceased.

In mitigation, the guilty plea attracted a discount, as did the offender's voluntary surrender and his cooperation with police by way of confession during the recorded interview. However, Bellew J tempered the weight given to the voluntary surrender, noting that existing police lines of inquiry made it likely the offender would have been identified regardless. The court drew on R v Ellis (1986) 6 NSWLR 603 and R v Thomson and Houlton (2000) 49 NSWLR 383 in calibrating the discount for the plea, and on cases such as R v Dong and R v Goundar in assessing the surrender.

A significant complicating factor was the complete absence of evidence from the offender on sentence. No explanation was offered for the killing, no subjective material was tendered, and no evidence was given. This left the court unable to make any positive finding about prospects of rehabilitation, which weighed against the offender when the question of special circumstances arose.

Bellew J rejected the submission that special circumstances existed under s 44(2) to justify departing from the standard ratio between non-parole period and total sentence. The factors relied upon, whether considered individually or together, did not meet that threshold. The court noted that where an offender needs a longer parole period, rehabilitation must be likely to succeed rather than merely possible.

Orders Made

  • The offender was convicted of murder.
  • Non-parole period of 13 years and 6 months, commencing 9 May 2011 and expiring 8 November 2024.
  • Balance of term of 4 years and 6 months, commencing 9 November 2024 and expiring 8 May 2029.
  • Total sentence: 18 years imprisonment.
  • Eligible for parole from 9 November 2024.

Key Takeaways

  • Following Muldrock v R (2011) 244 CLR 120, the Supreme Court confirmed that sentencing for murder requires a holistic weighing of all aggravating and mitigating factors; the standard non-parole period of 20 years serves as a reference point for a hypothetical mid-range offence, not a mandatory starting figure.
  • Voluntary surrender to police carries genuine mitigating weight, but that weight is reduced where existing investigative lines of inquiry would likely have identified the offender in any event.
  • Disposal of a victim's body after a murder is a serious aggravating factor, reflecting deliberate concealment and the additional harm caused to those searching for the deceased.
  • Where an offender presents no subjective evidence on sentence and offers no explanation for the offending, the sentencing court may be unable to make a positive finding about rehabilitation prospects, with adverse consequences for submissions about special circumstances.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances justifying a longer parole period require that rehabilitation be shown to be likely to succeed, not merely possible; circumstances that are not genuinely special cannot be elevated to that category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2), 54A, 54B(3), 55B(2), 61(1)

Cases
- Butters v R (2010) NSWCCA 1
- MAH v R [2006] NSWCCA 226
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- R v Bennett [2009] NSWSC 1392
- R v Bollen (1998) 99 A Crim R 510
- R v Carter [2003] NSWCCA 243
- R v Day [2010] NSWSC 983
- R v Dong [2010] NSWSC 1241
- R v Ellis (1986) 6 NSWLR 603
- R v FD and JD (2006) 160 A Crim R 392
- R v Fidow [2004] NSWCCA 172
- R v Goundar [2010] NSWSC 1170
- R v Hasan (2005) NSWCCA 21
- R v Previtera (1997) 94 A Crim R 76
- R v Simpson (2001) 53 NSWLR 704
- R v Thomas [2007] NSWCCA 269
- R v Thomson and Houlton (2000) 49 NSWLR 383