Citation: R v Paton [2014] NSWSC 71
Court: Supreme Court of New South Wales
Date: 14 February 2014
Judge(s): Button J
Background
The offender was tried before a jury in October and November 2013 for the murder of a man who was shot dead in his Wagga Wagga apartment in the early hours of 21 July 2011. The Crown alleged the offender had been criminally involved in the murder either as a participant in a joint criminal enterprise or as a person who intentionally assisted or encouraged the principal offender before or during the killing. The offender maintained he was only an accessory after the fact. The jury returned a verdict of guilty.
The principal offender, who carried out the shooting, had already been tried and sentenced separately. Button J had presided over that earlier matter as well, which created a need for careful quarantining of the evidence and submissions from the two proceedings.
At the sentencing hearing, a factual dispute remained about the extent and timing of the offender's involvement. The Crown accepted it could not prove beyond reasonable doubt that the offender was physically present at the scene during the murder, but submitted he had known for many hours beforehand that the killing was planned, and had taken active steps to assist. The offender's counsel submitted the awareness arose only shortly before the shooting, and that no active assistance beyond mere company had been provided.
Legal Issues
- What facts could be established to the required standard for sentencing purposes, given the contested evidence and the unreliability of a key witness?
- To what extent did the offender know of the planned murder in advance, and did he provide active assistance to the principal offender?
- How should the sentence be calibrated given the offender's limited but knowing role, his personal circumstances, and the fact he was on parole at the time of the offence?
- Whether enquiries made by the judge to the Crown Prosecutor about sentencing range during the proceedings were affected by the High Court's decision in Barbaro v The Queen [2014] HCA 2, which was handed down shortly afterwards.
Decision
Button J resolved the factual dispute by finding that the offender had been aware for several hours before the murder that the deceased was to be shot, and that his continued presence and involvement during that period constituted intentional assistance and encouragement of the principal. However, the Crown could not satisfy the court beyond reasonable doubt that the offender was present in the apartment or at the immediate scene when the killing occurred. His role was therefore that of a knowing accessory who assisted by his presence rather than a direct participant.
The court made adverse findings about the reliability of the key Crown witness, Tamsin Cameron, and was careful to assess her credibility solely by reference to the evidence in these proceedings, setting aside findings made about her in the earlier Kearnes sentencing. The court found that while her evidence had limitations, sufficient corroborating material supported the conclusion that the offender's awareness and involvement extended well before the shooting.
On the Barbaro issue, Button J noted some uncertainty about whether his pre-judgment enquiries of the Crown Prosecutor concerning sentencing range were consistent with the principle that Crown submissions on range are impermissible. Out of abundant caution, the court disregarded the Crown's responses to those enquiries entirely when determining the sentence.
Assessing moral blameworthiness, the court acknowledged the offender's difficult upbringing, psychological damage, and the influence of a more dominant personality. It also noted his lack of remorse, a criminal record that included acts of violence, and the serious aggravating circumstance that he was on parole at the time. The court found his moral culpability to be profound despite his comparatively limited active role.
Orders Made
- The offender was convicted of murder.
- Sentenced to imprisonment with a head sentence of 19 years.
- Non-parole period of 14 years and 3 months, commencing 10 November 2011.
- Parole period of 4 years and 9 months, expiring 9 November 2030.
- First eligible for release on parole on 9 February 2026.
Key Takeaways
- A sentencing court conducting its own fact-finding after conviction must apply the standard of proof consistently: adverse facts must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities, following R v Isaacs (1997) 41 NSWLR 374.
- Where a judge has presided over a related trial and sentencing involving a co-offender, procedural fairness requires that the evidence and submissions from those earlier proceedings be consciously put aside when determining facts in the subsequent sentencing.
- The standard non-parole period of 20 years for murder operated as a guidepost rather than a starting point, with the sentence ultimately set below that figure to reflect the offender's limited active role and personal circumstances.
- Being on parole at the time of the offence and failing to express remorse are significant factors that weigh against an offender at sentencing, even where the objective criminality is less than that of the principal.
- Following Barbaro v The Queen [2014] HCA 2, the Supreme Court here treated Crown submissions on sentencing range as inadmissible to consider, discarding responses already received before the High Court handed down that decision.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
- R v Kearnes (No 2) [2013] NSWSC 1652