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Supreme Court 1 November 2013

Regina v BELL, Gavin Anthony

[2013] NSWSC 1838

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING PLEA OF GUILTY FELONY MURDER CONSTRUCTIVE MURDER SOCIAL PERSONALITY CHARACTERISTICS

Citation: Regina v Bell [2013] NSWSC 1838
Court: Supreme Court of New South Wales
Date: 1 November 2013
Judge: Hall J

Background

The offender pleaded guilty to three charges arising from an armed home invasion at Werrington in August 2010. He and two co-offenders entered a family home late on a Sunday night, armed with loaded firearms and wearing balaclavas, intending to steal money and cannabis they mistakenly believed were on the premises.

During the invasion, a struggle broke out in the hallway and onto the front lawn involving the offender and members of the household. A co-offender fired three shots from a pistol, one of which struck the offender in the face. The offender then discharged his sawn-off rifle at 17-year-old Devril Leuthwaite, killing him. A second victim, Robert Leuthwaite Junior, was shot in the chest by the co-offender and spent time in intensive care.

The murder charge was founded on the doctrine of constructive (or felony) murder: the offender caused the death of the deceased while committing a serious indictable offence (aggravated assault with intent to rob) inside a dwelling house, an offence carrying a maximum of 25 years imprisonment. The aggravated assault of the father and the grievous bodily harm to the son were separately charged.

  • What sentence was appropriate for constructive murder where the foundational offence was an aggravated assault with intent to rob committed inside a dwelling house
  • What weight should be given to the offender's guilty plea in determining sentence, and what discount was appropriate
  • Whether the offender's personal circumstances, including longstanding drug use and anti-social personality disorder, warranted mitigation of sentence
  • Whether any link existed between the offender's anti-social personality disorder and a deprived or abusive upbringing, and whether that connection had any bearing on moral culpability
  • Whether special circumstances existed justifying a departure from the statutory ratio between non-parole period and balance of term

Decision

Hall J sentenced the offender on the basis of constructive murder under the Crimes Act 1900, the foundational offence being the aggravated armed robbery committed in company inside the victims' dwelling. The court noted that the offender had discharged the fatal shot after being accidentally shot in the face by his co-offender, but this did not diminish his culpability to a significant degree given that he had voluntarily participated in a planned armed home invasion with a loaded firearm.

A discount of 10% was applied to reflect the offender's early guilty plea. The court assessed the plea as genuine and consistent with an acceptance of responsibility, but the discount was modest given the weight of the evidence against him.

Hall J considered the psychological report and the offender's personal history, including long-term drug use and anti-social personality characteristics. However, the court found no established link between the offender's anti-social personality disorder and any abusive or deprived upbringing, meaning that no basis existed for reducing his moral culpability on those grounds. The court also declined to find special circumstances that would justify varying the statutory relationship between the non-parole period and the balance of term.

The sentences were structured to reflect the totality principle, with the three counts running cumulatively in part and concurrently in part. The court acknowledged the profound impact on the Leuthwaite family as expressed in victim impact statements, but noted that existing authority required those statements to be disregarded in the assessment of the appropriate sentence.

Orders Made

  • Count 3 (causing grievous bodily harm with intent to Robert Leuthwaite Junior): non-parole period of 7 years and 6 months commencing 25 August 2010, expiring 24 February 2018; balance of term of 2 years and 6 months expiring 24 August 2020
  • Count 2 (aggravated assault of Robert Leuthwaite Senior with intent to rob): non-parole period of 3 years and 9 months commencing 25 February 2011, expiring 24 November 2014; balance of term of 1 year and 3 months expiring 24 February 2016
  • Count 1 (murder of Devril Leuthwaite): non-parole period of 19 years commencing 25 February 2013, expiring 24 February 2032; balance of term of 6 years and 4 months expiring 24 June 2038
  • Total effective non-parole period: 21 years and 6 months, with a balance of term of 6 years and 4 months

Key Takeaways

  • Constructive (felony) murder carries serious sentencing consequences even where the offender's precise role in causing death was intertwined with the actions of a co-offender, provided the offender actively participated in the foundational serious indictable offence.
  • The Supreme Court held that being accidentally shot by a co-offender immediately before discharging the fatal shot did not constitute a significant mitigating factor in circumstances where the offender had deliberately entered the premises armed and in company.
  • An anti-social personality disorder will not reduce an offender's moral culpability unless a causal connection is established between that disorder and a deprived or abusive background; the mere presence of the disorder is insufficient.
  • Under established New South Wales authority (including R v Previtera and Bollen v R), victim impact statements are not to be taken into account in assessing the quantum of sentence, even where they are received and acknowledged by the court.
  • Special circumstances justifying a departure from the statutory non-parole period ratio will not be found simply on the basis of an offender's personal difficulties where no specific rehabilitative or other justifying factor is made out.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Bill 2013

Cases
- Bollen v R (1998) 99 A Crim R 510
- Brown v R [2006] NSWCCA 395
- Foster v R [2011] NSWCCA 285
- Hudd v R [2013] NSWCCA 57
- Muldrock v R [2011] HCA 39
- Pearce v R (1998) 194 CLR 610
- R v Jacobs (2004) 151 A Crim R 452
- R v JB; R v RJH (1999) NSWCCA 93
- R v Koloamatungi [2011] NSWCCA 288
- R v Mills (Court of Criminal Appeal, 3 April 1995, unreported)
- R v Nguyen [2007] NSWSC 389
- R v Previtera (1997) 94 A Crim R 76
- R v Raad [2011] NSWCCA 138
- R v Thompson [2011] NSWSC 1130