Citation: Ryan v R; Coulter v R [2013] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 29 July 2013
Judges: Simpson J (principal judgment), Price J, Harrison J (dissenting on Coulter's sentence)
Background
The two appellants were a mother and daughter convicted after jury trial of the murder of the daughter's husband. The Crown case was that the daughter had contracted with a third party to shoot her husband for $30,000, motivated by a deteriorating marriage and changes to his will. The mother contributed $10,000 toward the contract price, having been told by her daughter that the victim was treating the daughter and granddaughter very badly.
The victim was shot dead on his property near Tamworth in October 2009. A police undercover operative recorded extensive conversations with both women, including a lengthy conversation with the mother in which she acknowledged her financial contribution and her knowledge of the arrangement. The daughter's sister pleaded guilty to conspiracy to murder and gave evidence for the Crown.
At sentence, the daughter received 36 years imprisonment with a non-parole period of 27 years. The mother, who was 72 years old at the time of sentencing, received 27 years with a non-parole period of 18 years. Both appealed against conviction and sentence, although the daughter later abandoned her conviction appeal.
Legal Issues
- Whether leave should be granted to the mother to argue that the trial judge erred by failing to leave a partial defence under s 421 of the Crimes Act 1900 (defensive conduct reducing murder to manslaughter) to the jury
- Whether the daughter's sentence was manifestly excessive
- Whether the mother's sentence was manifestly excessive, having particular regard to:
- The standard non-parole period of 20 years and the reasons for departing from it
- The mother's prospects of rehabilitation
- Mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999
- The adequacy of the sentencing judge's reasons for the non-parole period imposed
Decision
Conviction appeal (Coulter only): The Court refused leave to argue the s 421 ground. Under r 4 of the Criminal Appeal Rules, leave is required where a ground was not raised at trial. There was no evidence before the jury capable of supporting a partial defence of defensive conduct. The Court held that the recorded conversations, including the mother's own statements, confirmed she knew the arrangement was to kill the victim, and nothing in the evidence suggested the mother was acting under a belief that the killing was necessary to protect her daughter from death or grievous bodily harm.
Sentence appeal (Ryan): The majority found no error in the daughter's sentence. Simpson J accepted that the sentence was stern but not manifestly excessive given the daughter was the instigator of a contracted killing, motivated by financial and personal grievances. No identifiable error in the sentencing judge's exercise of discretion was established.
Sentence appeal (Coulter, majority): Simpson J, with Price J agreeing, dismissed the mother's sentence appeal. The majority accepted that the sentence was severe, and acknowledged her age and more limited role, but held that these factors did not elevate the sentence to one that was manifestly excessive or outside the range properly open to the sentencing judge. The majority emphasised that appellate intervention requires more than a conclusion that a lighter sentence was available.
Sentence appeal (Coulter, dissent): Harrison J dissented on the mother's sentence. His Honour concluded that a non-parole period of 18 years for a 72-year-old offender rendered the sentence manifestly excessive because it made conventional sentencing considerations, including rehabilitation, specific deterrence, and protection of the community, largely artificial. Harrison J would have resentenced her to 20 years imprisonment with a non-parole period of 14 years.
Orders Made
Helen Ryan:
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Coralie Coulter:
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- Leave to argue a ground not raised at trial will be refused where there was no evidence capable of supporting the defence in question, even where the defence is a partial one under s 421 of the Crimes Act 1900.
- A sentence is not manifestly excessive merely because a lesser sentence was available or would have been imposed by a different judge. Appellate intervention requires a positive finding that the sentence fell outside the range properly open in the circumstances.
- The Court of Criminal Appeal confirmed, in line with established principle, that the assessment of sentence is primarily a matter for the sentencing judge, and deference is owed to that exercise of discretion.
- Harrison J's dissent identifies a live tension in the sentencing of elderly offenders: where an offender is unlikely to survive to the end of a non-parole period, conventional goals such as rehabilitation and specific deterrence may become largely notional, and that reality may bear on whether the non-parole period is manifestly excessive.
- No error was established in a sentencing judge giving greater weight to the objective gravity of a contracted killing than to mitigating factors, including a lesser financial contribution and indirect involvement.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 19A, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 21A(3)
- Criminal Appeal Rules, r 4
- Surveillance Devices Act 2007 (NSW)
Cases:
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- Braysich v The Queen [2011] HCA 14; 243 CLR 434
- Fingleton v The Queen [2005] HCA 34; 227 CLR 166
- Barton v Regina [2009] NSWCCA 164
- Des Rosiers v Regina [2006] NSWCCA 16
- Goebel-McGregor v R [2006] NSWCCA 390
- R v Braham (1994) 73 A Crim R 353
- R v Chen (2003) 138 A Crim R 433
- R v Holyoak (1995) 82 A Crim R 502
- R v Ceniccola [2011] NSWSC 302