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23
Supreme Court 17 September 2014

R v Hines (No 3)

[2014] NSWSC 1273

Homicide
CRIMINAL LAW SENTENCE MURDER SINGLE STAB WOUND TO THE CHEST NO PREMEDITATION PROVOCATION AS A MITIGATING FEATURE

Citation: R v Hines (No 3) [2014] NSWSC 1273
Court: Supreme Court of New South Wales
Date: 17 September 2014
Judge(s): Hamill J

Background

The offender, Alan John Hines, was sentenced for the murder of Aaron Jones in the early hours of 19 February 2013 in Wilcannia, a remote NSW town. The killing occurred during a chaotic confrontation between two groups who had gathered to mourn the death of a community member. Both men had been drinking heavily.

The fatal incident began with a dispute between the offender and his de facto partner's relatives. Jones, the partner of the offender's half-sister, intervened. The offender left the scene, crossed the road to his home, retrieved a kitchen knife, and returned. Jones, for his part, had retrieved a large iron bar. The offender stabbed Jones once in the chest, piercing his heart, and Jones died quickly.

The jury convicted the offender of murder after a trial in Broken Hill. The offender had pleaded guilty to manslaughter at the outset and cooperated substantially with the trial process, including making formal admissions and narrowing the witness list. He had a prior conviction for murder, which bore significantly on the sentencing proceedings.

  • What weight should be given to provocation as a mitigating factor in sentencing for murder, even where it did not reduce the verdict?
  • How should a prior murder conviction affect the sentence, particularly regarding future dangerousness?
  • What standard of proof applies when determining facts relevant to future dangerousness?
  • How should victim impact statements from family members be treated under the amended legislative framework?
  • What discount, if any, should be applied under section 22A of the Crimes (Sentencing Procedure) Act 1999 for facilitating the administration of justice (where no formal guilty plea was entered)?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether the offender's background, including deprivation and intoxication, should reduce the sentence.

Decision

Hamill J accepted that the offender had not premeditated the killing, but found that he intended to inflict grievous bodily harm, satisfying the mental element for murder. The confrontation was fuelled by alcohol and grief, and the deceased had made threats and used abusive language. While those circumstances did not negate the murder verdict, the court treated provocation as a mitigating factor in sentencing.

The offender's prior murder conviction was a significant aggravating factor. The court grappled with the appropriate standard of proof when assessing future dangerousness. Consistent with established authority, the court found that the prosecution must establish facts relied upon to increase the sentence beyond a reasonable doubt, while the offender bears the same standard for facts relied upon in mitigation. The prior conviction, combined with the nature of the current offence, supported a finding that the offender posed a risk of future violence, which justified a modest upward adjustment to the total sentence.

Regarding victim impact statements, Hamill J considered recent amendments to the Crimes (Sentencing Procedure) Act that broadened the basis on which courts may take such statements into account, treating the harm to the family as an "aspect of harm done to the community." The court acknowledged the impact on the deceased's family while being careful not to elevate the value of one victim's life over another's.

The offender received a one-year reduction in the total sentence under section 22A for facilitating the administration of justice through his cooperation and the narrowing of issues, though the court noted this reduction could not sensibly exceed what would be awarded for a guilty plea (around 5 to 10 per cent). Special circumstances were found, principally because of the need for an extended period of supervised release given the offender's prior history and the risk he poses to the community. This justified a non-parole period below the statutory default of three-quarters of the total term.

Orders Made

  • Total sentence of 24 years for murder.
  • Non-parole period of 16 years and 6 months, commencing 19 February 2013 and expiring 18 August 2029.
  • Balance of term of 7 years and 6 months, commencing 19 August 2029 and expiring 18 February 2037.
  • The offender becomes eligible for parole at the expiration of the non-parole period.
  • The offender was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 pursuant to section 25C(1).
  • Two domestic violence offences on the Form 1 (taken into account but attracting no additional specific penalty).

Key Takeaways

  • A prior murder conviction carries substantial weight in sentencing for a subsequent murder, informing both the aggravating features analysis and the assessment of future dangerousness under the Crimes (Sentencing Procedure) Act 1999.
  • Provocation that does not reduce a murder verdict to manslaughter may still operate as a mitigating factor at the sentencing stage, reducing the moral culpability of the offender below that of a premeditated or unprovoked killing.
  • Under section 22A of the Crimes (Sentencing Procedure) Act, a sentencing court may award a reduction for facilitating the administration of justice even without a formal guilty plea, but that reduction cannot exceed the range available for an outright plea (broadly 5 to 10 per cent).
  • Recent amendments to the sentencing legislation expanded the basis for considering family victims' impact statements in homicide cases, treating the harm to bereaved relatives as an aspect of harm to the community, though the court noted every human life is equally precious regardless of the victim's circumstances.
  • Background deprivation and intoxication were considered as contextual factors in the assessment of moral culpability, consistent with the High Court's approach in Bugmy v The Queen (2013) 249 CLR 571, but neither factor was capable of substantially reducing what remained a serious act of lethal violence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 32, 44
- Evidence Act 1995 (NSW), s 184

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Aslett v R [2006] NSWCCA 360
- Attorney General's Reference No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Olbrich v The Queen (1999) 199 CLR 270
- Potts v R [2012] NSWCCA 229
- R v Barlow [2013] NSWSC 217
- R v Bell (1985) 2 NSWLR 466
- R v Booth [2014] NSWCCA 156
- R v Gittany (No 5) [2014] NSWSC 49
- R v Hearne (2001) 124 A Crim R 451
- R v Heffernan [2005] NSWSC 739