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Supreme Court 10 May 2013

R v Mathew Aquilina

[2013] NSWSC 525

Homicide
CRIMINAL LAW MURDER

Citation: R v Mathew Aquilina [2013] NSWSC 525
Court: Supreme Court of New South Wales
Court: Supreme Court of New South Wales
Date: 10 May 2013
Judge: Bellew J

Background

The offender was tried jointly with his mother for the murder of the deceased. He had pleaded guilty to manslaughter but not guilty to murder, and the Crown did not accept the lesser plea. A jury convicted both the offender and his mother of murder on 26 September 2012. A third co-offender had separately pleaded guilty to murder before trial, and two others pleaded guilty to offences relating to concealment of evidence.

The killing involved the offender strangling the deceased. Following the death, the offender participated in the disposal and interference with the deceased's body on two separate occasions. During trial, the offender raised provocation as a complete defence; the jury rejected it.

At the sentencing hearing, the offender's counsel sought to rely on provocation as a mitigating factor rather than a complete defence, and also raised claims of remorse. The sentencing proceedings were substantially delayed due to procedural difficulties, including an adjournment sought to obtain psychiatric evidence that was ultimately not produced in the form represented to the court.

  • Whether provocation, having been rejected by the jury as a complete defence, could nonetheless operate as a mitigating factor at sentencing
  • Whether the recorded listening-device conversations and a police interview with the co-offender (the offender's mother) supported a finding of provocation in mitigation
  • Whether the offender had demonstrated genuine remorse within the meaning of the Crimes (Sentencing Procedure) Act 1999
  • The appropriate sentence, having regard to the standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999 and all relevant aggravating and mitigating factors

Decision

Provocation as mitigation: Bellew J accepted that provocation, even where rejected by a jury as a complete defence, may in principle be considered as a mitigating circumstance at sentencing. However, his Honour was not satisfied on the evidence that the offender had in fact been provoked. The transcripts of recorded conversations relied upon by counsel did not, when examined, support the submission. Some of the transcripts had not even been tendered at trial, and the manner in which they were belatedly introduced into the sentencing proceedings was procedurally unsatisfactory. The proposed reliance on a police interview with the co-offender (the offender's mother) was similarly rejected: it had not been tendered, it was hearsay, and the co-offender had not been called to give evidence.

Sentencing methodology: Applying Muldrock v R (2011) 244 CLR 120, Bellew J confirmed that the sentencing exercise did not require a mechanical assessment of whether the offence sat above or below the middle range of objective seriousness relative to the standard non-parole period. Instead, all relevant aggravating and mitigating factors were to be identified and weighed to arrive at an appropriate sentence. The standard non-parole period of 20 years served as a reference point, representing a hypothetical offence of middle-range objective seriousness without adjustment for individual circumstances.

Remorse: The court was not satisfied that the offender had demonstrated genuine remorse. Despite some correspondence showing limited acceptance of responsibility, other recorded statements by the offender described the murder as "worth it" and stated the deceased "deserved it." The offender also used consistently derogatory language about the deceased in both recorded conversations and personal correspondence. Bellew J found these statements to be the antithesis of remorse, and the statutory preconditions under the Crimes (Sentencing Procedure) Act 1999 for taking remorse into account were not met.

The sentence: Taking into account all relevant factors, including the offender's participation in a joint enterprise, the act of strangulation, the post-offence conduct in disposing of the body, and the absence of remorse and provocation in mitigation, the court imposed a total sentence of 28 years imprisonment with a non-parole period of 21 years.

Orders Made

  • Total sentence of 28 years imprisonment
  • Non-parole period of 21 years, commencing 5 January 2011 and ending 4 January 2032
  • Additional term of 7 years, commencing 5 January 2032 and ending 4 January 2039
  • Sentence backdated to 5 January 2011 (date of arrest)
  • Eligible for parole on 5 January 2032

Key Takeaways

  • Provocation rejected by a jury as a complete defence may still be raised as a mitigating factor at sentencing, but the sentencing court must be satisfied on the evidence that provocation in fact occurred before giving it any weight.
  • Where an offender seeks to rely on additional material at sentencing that was not tendered at trial, that material should be formally tendered during the sentencing proceedings; late or informal introduction of transcripts and interview records is procedurally deficient and may be disregarded.
  • Under Muldrock, sentencing for murder does not involve a threshold inquiry into whether the offence is above or below the midpoint of objective seriousness; rather, the standard non-parole period operates as a guidepost within a holistic weighing of all relevant factors.
  • Statements by an offender that a killing was "worth it" and that the victim "deserved it" are irreconcilable with a claim of remorse, and the statutory requirements for remorse as mitigation under the Crimes (Sentencing Procedure) Act 1999 will not be satisfied by selective correspondence showing only partial acceptance of responsibility.
  • Significant unexplained procedural failures in the lead-up to sentencing, including the non-production of psychiatric material that formed the basis of an adjournment application, were noted critically by Bellew J as "curious," signalling the court's expectation that counsel honour the representations made in support of adjournment applications.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B(2), 54B(3)
- Evidence Act 1995 (NSW)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Cheung v R [2001] HCA 67; (2001) 209 CLR 1
- Knight v R [2006] NSWCCA 292
- Butters v R [2010] NSWCCA 1
- R v Previtera (1997) 94 A Crim R 76