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Court of Criminal Appeal 2 May 2013

Filippou v R

[2013] NSWCCA 92

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER APPEAL AGAINST SENTENCE APPLICATION OF STANDARD NON 224 CLR 120

Citation: Filippou v R [2013] NSWCCA 92
Court: Court of Criminal Appeal, NSW
Date: 2 May 2013
Judge(s): McClellan JA (with whom Fullerton J and S Campbell J agreed)

Background

The appellant was convicted of the murder of two brothers following a shooting outside his home in Mayfield, Newcastle, in June 2010. The killings arose from an escalating neighbourhood dispute spanning approximately 18 months, triggered by a noise complaint and a series of confrontations between the appellant and the brothers.

The appellant admitted to shooting both men but pleaded not guilty to murder on the basis of provocation, seeking manslaughter verdicts instead. He was tried by a judge sitting alone, without a jury.

At sentencing, the trial judge imposed a non-parole period of 20 years on each count with a 5-year accumulation, producing an effective minimum term of 25 years imprisonment, plus an additional term of 6 years.

  • Whether the trial judge's verdict was unreasonable or unsupported by the evidence, particularly in finding no reasonable possibility that the appellant had lost self-control within the meaning of s 23 of the Crimes Act 1900 (the provocation defence)
  • Whether the trial judge erred in drawing inferences from the appellant's statements while in custody, and failed to consider alternative inferences available on the evidence
  • Whether the trial judge misdirected herself on the role of proportionality in the provocation analysis and applied the wrong burden of proof when assessing the "ordinary person" test
  • Whether the sentences imposed were excessive or otherwise in error, having regard to the High Court's guidance in Muldrock v The Queen [2011] HCA 39 on the use of standard non-parole periods as sentencing guideposts

Decision

Conviction appeal. The Court of Criminal Appeal found no error in the trial judge's reasoning or conclusions. Because the trial was conducted without a jury, the judge's written reasons were available for close scrutiny. The Court examined the findings on the appellant's loss of self-control and was not persuaded that the trial judge drew impermissible inferences from the appellant's custody statements, or that she ignored available alternative inferences.

On the provocation defence under s 23 of the Crimes Act 1900, the Court found no misdirection on proportionality, and no misapplication of the burden of proof in assessing whether an ordinary person could have lost self-control in the circumstances. The evidence, including a second shot fired into one victim while he lay incapacitated on the ground, strongly supported an intention to kill that was inconsistent with provocation reducing the offending to manslaughter.

Sentence appeal. The Court acknowledged that the trial judge's sentencing remarks did not expressly reference the High Court's decision in Muldrock, which clarified that a standard non-parole period is a guidepost rather than a mandatory benchmark. Despite this omission in the judge's formulation, the Court was satisfied that the sentences were entirely appropriate on the facts and that no lesser sentence was warranted.

On accumulation, the Court confirmed the principle from Veen v The Queen (No 2) that the overall sentence must be proportionate to the totality of the offending. Where two separate lives are taken, a degree of accumulation will ordinarily be appropriate to reflect that distinct, serious criminality. The 5-year accumulation was held to be justified in the circumstances.

Orders Made

  • Leave to appeal against conviction on Grounds 1 and 3 granted; appeal dismissed.
  • Leave to appeal against sentence granted; appeal dismissed.

Key Takeaways

  • Under s 23 of the Crimes Act 1900, a provocation defence requires a finding that there was a reasonable possibility the accused actually lost self-control; where evidence points to a calculated, deliberate act, a trial judge is entitled to reject that finding even where a history of conflict exists between the parties.
  • In a judge-alone trial, the written reasons are available for appellate scrutiny, but an appeal court will not substitute its own assessment of inferences unless the judge's reasoning is shown to be in error.
  • The Court of Criminal Appeal confirmed that a standard non-parole period remains an important guidepost following Muldrock, and a sentencing judge's failure to expressly reference Muldrock does not automatically vitiate a sentence that is otherwise proportionate on the facts.
  • Where multiple victims are killed in separate acts of serious criminality forming part of one criminal episode, partial accumulation of sentences will ordinarily be required to reflect the gravity of each distinct offending.
  • No error was established in the inference-drawing process simply because alternative inferences were theoretically available; the question is whether the drawn inference was rationally open on the evidence as a whole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23 (provocation)

Cases
- Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
- Moffa v The Queen (1977) 138 CLR 601
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v R (1981) 28 SASR 321
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465