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21
Court of Criminal Appeal 24 December 2014

AB v R

[2014] NSWCCA 339

Homicide
APPEAL APPEAL AGAINST SEVERITY OF SENTENCE POWERS OF COURT ON APPEAL SKINNER V THE KING [1913] HCA 32 16 CLR 336 R V O'DONOGHUE (1986) 34 A CRIM R 397

Citation: AB v R [2014] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 24 December 2014
Judge(s): Meagher JA, Simpson J, Wilson J

Background

The applicant was a juvenile offender who, together with a co-offender named Loveridge, committed a series of violent offences in the early hours of 1 December 2010. The offences began with a break-and-enter at the home of an 87-year-old woman, during which she was beaten with her own walking stick. The offenders then encountered a 17-year-old victim on the street and subjected him to a prolonged and savage attack with knives, inflicting at least 40 stab wounds, cuts, and bruising, ultimately causing his death.

The applicant pleaded guilty in the Children's Court to murder, aggravated break and enter, and intimidation, and was committed to the Supreme Court for sentencing. Adams J imposed an aggregate sentence of 45 years imprisonment with a non-parole period of 30 years. The indicative sentence for the murder alone was 45 years with a 30-year non-parole period.

The applicant sought leave to appeal against the severity of that sentence on four grounds: that the sentencing judge erred in finding an intention to torture the victim; that the objective seriousness of the murder was assessed too highly; that no discount was allowed for the guilty pleas; and that the sentence was disproportionate compared to the sentence imposed on co-offender Loveridge.

  • Whether the sentencing judge erred in finding the applicant intended to torture the victim, given the frenzied nature of the attack
  • Whether the sentencing judge erred in the assessment of the objective seriousness of the murder
  • Whether it was an error to deny any discount for the guilty pleas, in circumstances where the pleas were not attributed to genuine remorse
  • Whether the identical sentence imposed on the applicant and the co-offender gave rise to a legitimate sense of grievance, given distinguishing features including the applicant's younger age and guilty plea

Decision

Grounds 1 and 2: Intention to torture and objective seriousness. The Court confirmed that the appellate jurisdiction to review findings of fact is constrained: an appellate court may intervene only where a finding is shown to be wrong, not merely where a different finding was open. Simpson J found no basis to disturb the sentencing judge's conclusion that the applicant intended to torture the victim. A frenzied attack is not incompatible with such an intent, and the nature of the wounds, including the cutting of the Achilles tendon and stab wounds inflicted after the victim was already downed, supported that finding. The objective seriousness of the offence was plainly at the highest end of the range.

Ground 3: No discount for guilty plea. The Court applied the principle established in Milat v R; Klein v R [2014] NSWCCA 29, in which the Court held that a sentencing judge is not obliged to afford a utilitarian discount for a guilty plea in every case. Senior counsel for the applicant accepted during the hearing that this ground could not succeed in light of that authority, and the Court rejected it accordingly.

Ground 4: Parity with co-offender Loveridge. Both offenders received identical aggregate sentences of 45 years. The applicant pointed to several distinguishing factors: his guilty plea (which fell away with Ground 3), his slightly younger age, the application of the Children (Criminal Proceedings) Act 1987 to him but not Loveridge, and the fact that Loveridge was the first to use lethal violence. The Court noted that Loveridge was in fact sentenced for more offences than the applicant. Given that the murder was the dominant consideration, and that the two offenders were indistinguishable in relation to it, the Court found the applicant could have no legitimate sense of grievance.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A frenzied or sustained attack is not, as a matter of law, inconsistent with a finding that the offender intended to torture the victim; the nature and distribution of wounds can support such a finding even in the absence of calculated or methodical conduct.
  • Under the principle confirmed in Milat v R; Klein v R [2014] NSWCCA 29, a utilitarian discount for a guilty plea is not available as of right in every case, particularly where the plea is attributable to the inevitability of conviction rather than genuine remorse.
  • The Court of Criminal Appeal confirmed that its jurisdiction to review factual findings on severity appeals is limited: appellate intervention requires a finding to have been wrong, not merely a finding that a different conclusion was available.
  • Where co-offenders receive identical sentences, a parity argument will not succeed simply because one offender is younger or pleaded guilty, if the primary offence was committed jointly and the two were indistinguishable in respect of it.
  • The age difference between co-offenders, and the technical application of the Children (Criminal Proceedings) Act 1987 to one but not the other, may carry reduced weight in sentencing where the age gap is small and the gravity of the offending is extreme.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A
- Criminal Appeal Act 1912 (NSW), ss 5, 6(3)
- Supreme Court Act 1970 (NSW), s 75A

Cases
- Skinner v The King [1913] HCA 32; 16 CLR 336
- R v O'Donoghue (1986) 34 A Crim R 397
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Milat v R; Klein v R [2014] NSWCCA 29
- Milat v The Queen [2014] HCA Trans 205
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Warren v Coombes [1979] HCA 9; 142 CLR 531
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19