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Supreme Court 7 March 2014

R v Panetta

[2014] NSWSC 27

Homicide
CRIMINAL LAW SENTENCE MURDER PLEA OF GUILTY OFFENDER PERSUADED BY PARTNER, EX MULTIPLE BLOWS TO THE HEAD WITH HAMMER

Citation: R v Panetta [2014] NSWSC 27
Court: Supreme Court of New South Wales
Date: 7 March 2014
Judge: Davies J

Background

The offender pleaded guilty to murdering Muhammed Shafique on 18 September 2008. The killing occurred in an underground car park at West Ryde, where the offender had waited to abduct and rob the deceased. When the deceased resisted, the offender struck him repeatedly in the head with a hammer approximately fifteen times. The offender then buried the body in bushland near Campbelltown.

The offender had been manipulated by his partner, who was in fact the deceased's ex-wife. She had falsely portrayed the deceased as a dangerous criminal connected to the Taliban and involved in fraud, and had concealed her own true identity and relationship to the deceased throughout. The offender, who was of low intelligence and had personality vulnerabilities, acted partly out of misguided belief and partly out of an opportunistic plan to rob the deceased.

Crucially, the offender's involvement was entirely unknown to police. Four years after the killing, in November 2010, the offender walked into Dee Why Police Station and voluntarily confessed. He also directed investigators to the burial site, where the remains were recovered. He entered a guilty plea shortly before his trial was due to commence in November 2013.

  • What sentence was appropriate for the murder, having regard to all objective and subjective factors?
  • What weight should be given to the principle in R v Ellis (1986) 6 NSWLR 603, which provides for significant leniency where an offender voluntarily discloses an offence that was otherwise unknown to police?
  • Whether a specific arithmetical discount should be applied for the Ellis principle, or whether it should be factored into the overall sentencing exercise.
  • Whether a 10% discount for the guilty plea was appropriate given the lateness of the plea.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Davies J found that the murder was a serious one. The offender had planned the abduction and robbery, armed himself with cable ties, and struck the deceased approximately fifteen times with a hammer after the deceased attempted to defend himself. The court characterised the killing as arising from a combination of manipulation by the offender's partner, opportunistic greed, and a loss of self-control. The objective seriousness, while significant, was somewhat tempered by the unusual circumstances, including the degree to which the offender had been deceived and used.

On the Ellis principle, Davies J confirmed that a substantial sentencing benefit flows where an offender voluntarily confesses to an offence that police had no reason to suspect had even occurred. The court noted that such a disclosure goes beyond a mere guilty plea and bears on remorse, contrition, and the reduced need for personal deterrence. Davies J declined to apply a fixed arithmetical discount for the Ellis principle, consistent with the approach in Markarian v The Queen and Muldrock v The Queen, which favour a global sentencing exercise rather than a mathematical deduction for each mitigating factor.

A 10% discount for the guilty plea was applied, reflecting the lateness of that plea. The court acknowledged that the cases most directly comparable on the Ellis principle all pre-dated the introduction of standard non-parole periods, limiting their utility as sentencing comparisons.

The court declined to find special circumstances. First time in custody alone was held insufficient to justify a departure from the standard ratio. The unusual facts driving the offending were considered unlikely to recur, and the psychological and psychiatric reports did not indicate a need for extended post-release supervision.

Orders Made

  • The offender was sentenced to a total term of 17 years imprisonment for murder.
  • Non-parole period of 12 years and 9 months, commencing 12 November 2010 and expiring 11 August 2023.
  • Additional term of 4 years and 3 months, expiring 11 November 2027.
  • First eligible parole date: 12 August 2023.
  • Sentence backdated to 12 November 2010, the date the offender was taken into custody.

Key Takeaways

  • The Ellis principle provides for considerable leniency in sentencing where an offender voluntarily discloses an offence that was entirely unknown to police, and it remains applicable in murder cases, though comparator cases pre-dating standard non-parole periods are of limited assistance.
  • No separate arithmetical discount is applied for the Ellis principle. Following Markarian and Muldrock, sentencing courts integrate that factor into an overall instinctive synthesis rather than applying a mechanical percentage reduction.
  • A voluntary confession informing the Ellis discount also bears on the assessment of remorse and personal deterrence, potentially reducing the weight of those factors in the overall sentencing calculus.
  • First-time custody alone does not establish special circumstances sufficient to justify an extended parole period beyond the standard ratio.
  • Where an offender's culpability is genuinely, though not wholly, affected by manipulation or deception by a third party, that background remains a relevant (though not determinative) mitigating consideration in the overall sentencing exercise.

Legislation and Cases Referenced

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Raad v R [2011] NSWCCA 138
- R v Borkowski [2009] NSWCCA 102
- R v Windle [2012] NSWCCA 222
- R v Lawson Donald [2013] NSWCCA 238
- R v Muldrock [2012] NSWCCA 108
- Nona v The Queen [2012] NTCCA 03
- R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284
- R v Previtera (1997) 94 A Crim R 76
- R v Dawes [2004] NSWCCA 363
- Apps v R [2006] NSWCCA 290