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Supreme Court 23 November 2012

R v SHEE, Gregory John

[2012] NSWSC 1422

Assault & violenceHomicideDrugsFirearms & weapons
CRIME SENTENCING FOLLOWING VERDICT MURDER ANTECEDENTS MAINLY DRUG USE OF WEAPON

Citation: R v SHEE, Gregory John [2012] NSWSC 1422
Court: Supreme Court of New South Wales
Date: 23 November 2012
Judge: Beech-Jones J

Background

The offender was convicted by jury of murdering Hoang Tang on 8 July 2010 at Macquarie Fields. The offender, the deceased and the deceased's partner were all known to each other and were receiving treatment for drug addiction. On the evening of the offence, the offender and the deceased had been drinking and taking prescription drugs together after the offender had intervened in a domestic dispute at the deceased's partner's home.

A confrontation broke out at the offender's home, apparently over money the offender believed the deceased had stolen. Witnesses observed an altercation outside the offender's house during which the offender dragged and punched the deceased while demanding the return of his money. The deceased was later found naked and badly injured in a nearby creek, approximately 250 metres from the offender's house. He died from his injuries.

At trial, the jury rejected defences of self-defence, intoxication and provocation. The matter then proceeded to sentencing before Beech-Jones J.

  • Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
  • How to apply the standard non-parole period of 20 years for murder in light of Muldrock v R [2011] HCA 39
  • What weight to give the offender's mild intellectual disability in assessing moral culpability, general deterrence and retribution
  • What weight to give the offender's criminal history, absence of remorse, use of a weapon, and prospects of rehabilitation
  • Whether intoxication at the time of the offence had any relevance to sentencing, given that the jury had rejected intoxication as a defence

Decision

Beech-Jones J was not satisfied that a life sentence was warranted, and the Crown did not submit otherwise. Applying Muldrock, his Honour identified the maximum sentence and the 20-year standard non-parole period as legislative guideposts rather than a starting point, and assessed all relevant factors before arriving at an appropriate sentence.

The offender's criminal antecedents included mainly drug-related property offences and domestic violence matters. His Honour found the offence was a serious one: it involved the sustained beating of the deceased, including dragging and punching him, stripping him of his clothes in a search for money, and leaving him injured in a creek. There was no remorse. His Honour found the offender posed a low to medium risk of reoffending.

The offender had a mild intellectual disability, as identified by Dr Nielssen. His Honour accepted that this reduced his moral culpability to some extent and warranted some amelioration of general deterrence and retribution in the sentencing calculus. However, his Honour found the disability did not rise to the level of impairing the offender's capacity to reason about the wrongfulness of his conduct, and the need for specific deterrence remained.

Taking all factors into account, his Honour accepted that a non-parole period below the standard 20-year benchmark was appropriate. The sentence was backdated to the date the offender was taken into custody following his police interview on 7 July 2010.

Orders Made

  • The offender was convicted of murder.
  • A non-parole period of 15 years' imprisonment was set, commencing 7 July 2010 and ending 6 July 2025.
  • An additional term of 5 years was imposed, commencing 7 July 2025 and ending 6 July 2030.
  • Total term of imprisonment: 20 years.
  • The offender is eligible for release on parole on 7 July 2025.

Key Takeaways

  • Under Muldrock v R, a sentencing court is not required to treat the standard non-parole period for murder as a starting point; rather, the maximum sentence and the standard non-parole period serve as two legislative guideposts while the court assesses all relevant factors holistically.

  • A mild intellectual disability can reduce moral culpability and justify some amelioration of general deterrence and retribution, but does not necessarily diminish the offender's capacity to reason about the wrongfulness of their conduct or reduce the need for specific deterrence.

  • Where a jury has rejected intoxication as a complete defence under Part 11A of the Crimes Act 1900, the fact of intoxication may nonetheless remain relevant to other sentencing considerations, including culpability.

  • Absence of remorse, use of violence over a sustained period, and the vulnerability of the victim are factors that bear on the objective seriousness of a murder and on the appropriate non-parole period.

  • A non-parole period below the 20-year standard can be appropriate for murder where the combination of relevant mitigating factors, including intellectual disability and the circumstances of the offence, warrants a departure from the guidepost figure.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 23(2), Part 11A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30A, 44(2), 54A, 61(1)

Cases
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Markarian v R [2005] HCA 25; 228 CLR 357
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- MAH v R [2006] NSWCCA 226
- R v Koloamatangi [2011] NSWCCA 288
- R v Bugmy [2011] NSWSC 357
- R v Williams [2011] NSWSC 583
- R v Isaacs (1997) 41 NSWLR 374
- R v Pilley (1991) 56 A Crim R 202