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Supreme Court 24 October 2014

R v Hunter (No 15)

[2014] NSWSC 1456

Assault & violenceHomicide
CRIMINAL LAW REMARKS ON SENTENCE PLEA OF NOT GUILTY TO MURDER OFFENDER MOTIVATED BY VENGEANCE

Citation: R v Hunter (No 15) [2014] NSWSC 1456
Court: Supreme Court of New South Wales
Date: 24 October 2014
Judge(s): Button J

Background

The offender was charged with the murder of Jason Dixon, which allegedly occurred on 20 June 2011 at Dharruk in western Sydney. A jury acquitted the offender of murder but returned a verdict of guilty of manslaughter. He appeared before the Supreme Court for sentencing on that verdict.

The facts established that the deceased had struck the offender to the head with an iron bar at least three times earlier that afternoon. The offender then made threats of revenge, collected a large and heavy socket wrench, and later travelled with two relatives to the deceased's home. A brutal bashing was inflicted on the deceased using at least two weapons, caving in part of his skull. Mr Dixon died from his injuries two days later.

Button J sentenced the offender on the basis that he was present at the scene and participated in a joint criminal enterprise to inflict a bashing, but that he did not himself intend to kill or cause really serious physical injury to the deceased, consistent with the jury's verdict acquitting him of murder.

  • What factual basis was established for sentencing, given the jury's verdict of manslaughter rather than murder?
  • Whether the offender was to be sentenced as a direct participant in the assault or as a party to a joint criminal enterprise to inflict a bashing
  • How the objective seriousness of the offence and the offender's moral culpability should be assessed, including the aggravating role of vengeance and the use of weapons
  • How the offender's grossly deprived upbringing should be weighed in mitigation, taking into account the High Court's guidance in Bugmy and Munda
  • What sentence, including non-parole period, was appropriate in all the circumstances

Decision

Button J first identified the factual framework for sentencing. The Crown did not submit that the court could be satisfied beyond reasonable doubt that the offender physically struck the deceased. Accordingly, the judge sentenced the offender on the basis that he participated in a joint criminal enterprise to batter the deceased, without a specific intention to kill or cause really serious harm. Consistent with the principle in De Simoni, the offender was not to be punished for an offence greater than that for which he was convicted.

The judge found several significant aggravating factors. The offender was the moving party in organising and attending the fatal assault. He was motivated by vengeance for the earlier attack upon him. He attended the deceased's home with a large heavy weapon. He was on conditional liberty at the time of the offence and carried a lengthy criminal record that included prior violence.

In mitigation, Button J gave weight to the offender's severely deprived upbringing, applying the High Court's guidance in Bugmy v The Queen and Munda v Western Australia. The court acknowledged that such deprivation can diminish moral culpability. However, the judge expressly noted the High Court's warning in Munda that courts must never devalue the lives of Aboriginal victims harmed by Aboriginal offenders when performing this balancing exercise.

The defence submission that the non-parole period should amount to time already served (approximately three years and four months) was rejected as wholly inadequate to reflect the objective seriousness of the offence and the offender's moral culpability.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to a head sentence of 8 years imprisonment.
  • Non-parole period of 6 years, commencing 22 June 2011.
  • Parole period of 2 years, expiring 21 June 2019.
  • First eligible for release to parole on 21 June 2017.

Key Takeaways

  • Where a jury acquits of murder but convicts of manslaughter, the sentencing court must make its own factual findings consistent with that verdict, rather than attempt to reconstruct the jury's reasoning, following R v Isaacs.
  • Any fact adverse to the offender beyond the elements of the offence must be proven beyond reasonable doubt; facts favourable to the offender need only be established on the balance of probabilities, per The Queen v Olbrich.
  • Under the principle in De Simoni, a sentencing court cannot punish an offender more severely by treating as an aggravating circumstance a factual finding that would constitute a more serious offence than that for which the offender was convicted.
  • The Supreme Court applied Bugmy and Munda in weighing a grossly deprived upbringing as a mitigating factor, while explicitly heeding the Munda warning that the lives of Aboriginal victims must not be devalued in this process.
  • Participating in a joint criminal enterprise to inflict a fatal bashing, motivated by vengeance, while on conditional liberty and with a record of prior violence, represented a level of objective seriousness and moral culpability that the court considered warranted an 8-year head sentence with a 6-year non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28(4)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Abbas v R [2014] NSWCCA 188
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587
- R v Wood [2014] NSWCCA 184
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Whittaker v The King (1928) 41 CLR 230