Citation: R v JK [2012] NSWSC 710
Court: Supreme Court of New South Wales
Date: 29 June 2012
Judge: Harrison J
Background
The offender, a young person referred to as JK, pleaded guilty to the murder of Colin Ferrier and to attempted aggravated break, enter and steal with intent. The offences occurred in the early hours of 16 June 2010 at a 24-hour service station in Buronga, far southwestern New South Wales. JK was part of a group of young people who had been committing a series of thefts and break-ins across the region throughout the preceding evening and into the night.
The deceased and his son had stopped at the service station overnight after travelling from South Australia. When JK's group attempted to break into the service station shop, JK also punched the deceased several times. JK then took the deceased's utility vehicle and drove it forward, striking the deceased. After the deceased and his son fled onto a nearby street, JK revved the engine and drove the utility suddenly and forcefully forward, striking the deceased, running him over, and causing fatal injuries.
The case came before Harrison J for sentencing. A number of additional matters were taken into account on Forms 1, including larceny, arson, taking and driving a motor vehicle, and armed robbery causing wounding.
Legal Issues
- What sentence was appropriate for a constructive murder where the offender had no intention to kill or inflict grievous bodily harm, and death resulted from driving a vehicle during flight from an attempted break and enter?
- How should the court apply the sentencing principles applicable to young offenders alongside the general sentencing regime under the Crimes (Sentencing Procedure) Act 1999?
- How should time already spent in custody, including periods referable to other sentences, be accounted for in the overall sentence?
Decision
Harrison J sentenced JK for constructive murder under s 18 of the Crimes Act 1900. The offence was characterised as constructive murder because the death occurred in the course of a serious criminal act, being the attempted break and enter, rather than through any intention to kill or cause grievous bodily harm. The court was satisfied that the deceased's death was not intended and was not even contemplated by JK.
Despite the absence of murderous intent, Harrison J found significant aggravating features. JK had driven the vehicle to a position directly connected to the fatal outcome, and the death resulted from highly aggressive and violent conduct that was entirely unnecessary and avoidable. The killing occurred against a background of other violent and threatening behaviour directed at the deceased and his son. The deceased was described as entirely innocent and blameless.
The court applied the principles relevant to constructive murder sentencing, noting from the case law that such offences do not automatically attract a lower sentence than other categories of murder. Degrees of seriousness exist within the category, and the appropriate sentence turns on the nature of the offender's conduct. The court also gave consideration to the provisions of the Children (Criminal Proceedings) Act 1987 and factors relevant to the offender's youth, as well as the statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
On the question of custody, the Crown conceded that 14 January 2012 was the appropriate date from which time in custody could be treated as wholly referable to the offences being sentenced, as prior periods were attributable to other sentences already being served.
Orders Made
- For attempted aggravated break, enter and steal with intent: imprisonment for 2 years, commencing 15 January 2012 and expiring 14 January 2014.
- For murder: imprisonment for 15 years, with a non-parole period of 10 years commencing 15 October 2012 and expiring 14 October 2022, and a balance of term of 5 years commencing 15 October 2022 and expiring 14 October 2027.
Key Takeaways
- Constructive murder, where death results from conduct in the course of a serious offence rather than from an intention to kill, does not automatically attract a lower sentence than other categories of murder. The appropriate sentence depends on the specific nature of the offender's conduct and role in the events.
- A finding that death was neither intended nor contemplated is a significant mitigating factor in a constructive murder sentence, but it does not override the gravity of the violence surrounding the offending.
- Under the Children (Criminal Proceedings) Act 1987, the court is required to have regard to principles relevant to young offenders even when sentencing for the most serious offences, including murder.
- Where an offender has spent time in custody partly referable to other sentences and partly referable to the offences being sentenced, only the period wholly referable to the subject offences is properly taken into account in fixing the commencement of the sentence.
- Aggravating conduct surrounding the death, including broader violent behaviour by the offender and his companions, is relevant to the overall assessment of objective seriousness even in a constructive murder case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18, 98, 113(2), 117, 154A, 195(1A)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 33(1)(g)
Cases:
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- McDonald v R (Unreported, NSWCCA, 18 August 1994)
- R v Bollen (1998) 99 A Crim R 510
- R v Borokowski [2009] NSWCCA 102
- R v Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- R v Hooker [1999] NSWSC 896
- R v Jacobs and Mehajer [2004] NSWCCA 462
- R v JB [1999] NSWCCA 93
- R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361
- R v Previtera (1997) 94 A Crim R 76
- R v Wright (1997) 93 A Crim R 48