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7
Court of Criminal Appeal 4 December 2015

Dean v R

[2015] NSWCCA 307

HomicideDrugsTheft & property
CRIMINAL LAW SENTENCE APPEAL 11 COUNTS OF MURDER 11 LIFE SENTENCES STAGE APPROACH TO SENTENCING FOR MURDER WHETHER TWO

Citation: Dean v R [2015] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 4 December 2015
Judge(s): Ward JA (with Adams J and R A Hulme J agreeing)

Background

The appellant was a registered nurse employed at an aged care facility in Quakers Hill, Sydney. In the early hours of 18 November 2011, he deliberately lit two fires at the nursing home, killing eleven elderly residents and causing serious injuries from burns and smoke inhalation to eight others. The nursing home housed many high-care residents, a number of whom were immobile or living with dementia.

The fires were lit to create a distraction following the discovery that S8 drugs (restricted prescription drugs of addiction) had been stolen from the facility during the appellant's previous shift. The appellant had stolen those drugs himself and knew that management and police had been alerted. Rather than warn fire officers about the second fire or assist immobile residents to escape, he took no steps to help them.

The appellant pleaded guilty to eleven counts of murder, eight counts of recklessly causing grievous bodily harm, and two counts of larceny as a clerk. He received life imprisonment on each count of murder. His appeal to the Court of Criminal Appeal challenged only the murder sentences.

  • Whether the sentencing judge erred by adopting an impermissible two-stage approach to sentencing for murder, contrary to the methodology required by Markarian and Muldrock
  • Whether the sentencing judge erred in concluding that no lesser penalty than life imprisonment could adequately reflect the appellant's culpability
  • Whether the eleven life sentences were manifestly excessive

Decision

Ground 1(a): Two-stage sentencing approach. The Court granted leave to add this ground, raised late in the hearing. Ward JA examined the sentencing judge's reasons closely and found that, properly understood, the judge had not applied a rigid or impermissible two-stage process. Although the judge's language occasionally suggested a staged inquiry, the reasons as a whole demonstrated a proper instinctive synthesis of all relevant factors before arriving at the life sentences. No error in methodology was established.

Ground 1(b): Adequacy of life imprisonment. The Court considered whether the sentencing judge had correctly assessed that no lesser sentence could reflect the appellant's culpability. Ward JA rejected each of the four specific reasons advanced by the appellant, including arguments relating to the weight given to the guilty plea, the assessment of drug dependence as a mitigating factor, the characterisation of the offending as falling in the worst category, and the evaluation of the appellant's remorse. The Court found that the sentencing judge's guarded assessment of remorse, explained by the appellant's personality disorder limiting his capacity for insight, was not shown to be in error.

Ground 2: Manifest excess. To succeed on this ground, an appellant must demonstrate that the sentence was unreasonable or plainly unjust, a difficult threshold. The Court held that, having regard to the number of murder and grievous bodily harm convictions, the extreme vulnerability of the victims, the appellant's abuse of a position of professional trust, his motive to conceal his own serious criminality, and his failure to assist immobile residents from the path of the second fire, the life sentences could not be characterised as unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that life imprisonment remains available and appropriate where no lesser sentence could adequately reflect an offender's culpability, particularly where the scale and nature of the offending is extreme.
  • A sentencing judge's reasons will not be found to adopt an impermissible two-stage approach merely because the language used appears sequential; the question is whether, read as a whole, the reasons reflect a proper synthesis of all sentencing factors.
  • The threshold for establishing manifest excess is high: an appellant must show the sentence was unreasonable or plainly unjust, not merely that a different sentence could have been imposed.
  • Where an offender exploits a position of professional trust over highly vulnerable people, and acts deliberately to conceal prior criminal conduct, these features weigh heavily against leniency at sentencing.
  • An assessment that remorse is limited or difficult to gauge, explained by a diagnosed personality disorder affecting the offender's capacity for insight, does not of itself constitute an error in the sentencing judge's reasoning.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 156
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54, 54B, 61

Cases
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
- R v Dean [2013] NSWSC 1027 (primary sentencing decision)
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409
- R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80
- Ngo v R [2013] NSWCCA 142; (2013) 233 A Crim R 121
- El-Zeyat v R [2015] NSWCCA 196
- Blackwell v R [2011] NSWCCA 93