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Supreme Court 7 December 2012

R v David Comber

[2012] NSWSC 1502

HomicideFraud & dishonesty
CRIMINAL LAW MURDER SENTENCE

Citation: R v David Comber [2012] NSWSC 1502
Court: Supreme Court of New South Wales
Date: 7 December 2012
Judge(s): Bellew J

Background

The offender pleaded guilty to the murder of Adrian Trevett, committed on 29 October 2010 at Red Range in northern New South Wales. The deceased was a local man who lived alone in a caravan and operated a small fruit and vegetable business in Glen Innes. He was lured back to his neighbour's property after completing a cycling trip across the Gibraltar Range.

The offender was recruited by Mathew Aquilina, a man he had come to know through living next door to Aquilina's de-facto partner in Casino. Aquilina told the offender that his mother, who was the deceased's neighbour, was having difficulties with the deceased, and that he intended to go and "sort it out." The offender agreed to accompany Aquilina as "back up." Once at the property, Aquilina gave the offender a carving knife. The deceased was attacked and killed when he arrived at the shed where the two men were waiting.

In addition to the murder charge, the offender faced 17 back-up dishonesty offences under the Crimes Act 1900 (NSW) for obtaining property by deception, along with two Commonwealth offences of dealing in proceeds of crime under the Criminal Code Act 1995 (Cth), one involving property worth $50,000 or more and one involving property worth $10,000 or more. All offences were before the Supreme Court for sentence together.

  • What was the appropriate sentence for murder, having regard to the offender's role in a joint criminal enterprise?
  • What discount should be applied to reflect the guilty plea to the murder offence?
  • What was the appropriate sentence for the Commonwealth proceeds-of-crime offences, and how should those sentences be structured relative to the murder sentence?
  • What was the appropriate sentence for the 17 dishonesty offences, given the Court's restricted sentencing powers in respect of those matters?
  • Whether non-parole periods should be fixed for the Commonwealth offences, or whether fixed-term sentences were appropriate in the circumstances.

Decision

Bellew J accepted that the offender's role in the murder was as a participant in a joint enterprise. Although the agreed facts were not fully reproduced in the available text, the court assessed the offender's culpability within that enterprise and arrived at a sentence that reflected his particular degree of involvement.

On the murder offence, the court applied a discount to reflect the guilty plea entered on 22 August 2012. The judgment records that, absent the plea, the appropriate non-parole period would have been 19 years and 6 months with an additional term of 6 years and 6 months, producing a total of 26 years. The plea discount reduced the total term to 23 years and 4 months, with a non-parole period of 17 years and 6 months.

For the Commonwealth offences, Bellew J declined to fix a non-parole period, instead imposing fixed terms of 18 months each. The court accepted the Crown's submission that these sentences should run wholly concurrently with the murder sentence, noting that the Commonwealth matters would ordinarily have been finalised some time earlier had they not been referred to the Supreme Court once the murder charge came to light.

The 17 dishonesty offences were dealt with under the sentencing powers of a Local Court magistrate, limiting the maximum term for each offence to 2 years. The court imposed fixed terms of 6 months on each dishonesty offence, ordered to run concurrently with each other but subject to partial accumulation with the murder sentence.

Orders Made

  • Commonwealth offences (s 400.5 and s 400.6, Criminal Code Act 1995 (Cth)): Offender convicted and sentenced to a fixed term of 18 months imprisonment each, commencing 5 January 2011 and ending 4 July 2012, to run wholly concurrently with the murder sentence. No non-parole period fixed.
  • Dishonesty offences (s 192E(1)(a), Crimes Act 1900 (NSW)): Offender convicted on each of 17 offences and sentenced to a fixed term of 6 months imprisonment each, commencing 5 January 2011 and ending 4 July 2011, subject to partial accumulation with the murder sentence.
  • Murder offence: Offender convicted and sentenced to a non-parole period of 17 years and 6 months commencing 5 April 2011 and ending 4 October 2028, with an additional term of 5 years and 10 months commencing 5 October 2028 and ending 4 August 2034. Total term: 23 years and 4 months.
  • Eligible for parole on 5 October 2028; sentence expires 4 August 2034.

Key Takeaways

  • In a joint enterprise murder, sentencing turns on each participant's particular role and degree of involvement, rather than treating all parties identically.
  • A substantial guilty plea discount applied: the court recorded that the murder sentence would have been 26 years total (non-parole of 19 years and 6 months) without the plea, reduced to 23 years and 4 months (non-parole of 17 years and 6 months) with it.
  • Where Commonwealth proceeds-of-crime offences would ordinarily have been finalised before the more serious state offence came before the Supreme Court, the court considered it appropriate to impose wholly concurrent fixed terms rather than accumulate them.
  • The Supreme Court's sentencing powers for summary dishonesty offences annexed via a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) are restricted to those of a Local Court magistrate, capping each term at 2 years.
  • Partial accumulation of the dishonesty sentences on the murder sentence reflected the principle that the totality of the sentence should reflect the full criminality involved across all offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 192E(1)(a)
- Criminal Code Act 1995 (Cth), ss 400.5(1), 400.6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 128(2), 166, 183, 267
- Crimes Act 1914 (Cth)

Cases:
- Cameron v R (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Jackson v R [2010] NSWCCA 162
- Knight v R [2006] NSWCCA 292
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- R v Cartwright (1989) 17 NSWLR 243
- R v Dong [2010] NSWSC 1242
- R v Ellis (1986) 6 NSWLR 603
- R v Goundar [2010] NSWSC 1170
- R v Isaacs (1997) 41 NSWLR 374
- R v Otto (2005) 157 A Crim R 540
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Yeo [2003] NSWSC 315
- Tyler v R; R v Chalmers (2007) 173 A Crim R 458
- Versluys v R [2008] NSWCCA 76