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Court of Criminal Appeal 20 May 2015

King v R

[2015] NSWCCA 99

Assault & violenceHomicideDrugs
CRIMINAL LAW SENTENCE APPEAL MURDER APPLICANT INTOXICATED BY ICE AT TIME WHETHER PRINCIPLE OF TOTALITY OBSERVED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: King v R [2015] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 20 May 2015
Judge(s): Hoeben CJ at CL, Hidden J, Beech-Jones J

Background

The applicant was convicted by jury of the murder of his 18-year-old girlfriend, who was beaten to death in her Sydney apartment in July 2011. The applicant, then aged 25, had consumed crystal methamphetamine (ice) and alcohol in the hours before the killing. The murder was exceptionally violent: the deceased died from blunt force trauma to the liver and heart caused by repeated stomping, with the pathologist describing the force applied as extreme.

The applicant had also pleaded guilty in the Local Court to two earlier unrelated assaults committed in April 2010, one involving reckless infliction of grievous bodily harm and the other actual bodily harm. These were sentenced concurrently with the murder at proceedings in mid-2013.

The total sentence imposed was 33 years and 6 months imprisonment, with a non-parole period of 25 years and 6 months. The applicant sought leave to appeal on the basis that the sentence was too severe.

  • Whether the sentencing judge gave adequate weight to the applicant's prospects of rehabilitation
  • Whether the sentencing judge erred in treating the applicant's intoxication by ice as an aggravating feature
  • Whether the sentencing judge gave sufficient weight to the principle of totality when structuring the overall sentence
  • Whether the total sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed all four grounds. On rehabilitation, the Court found that the sentencing judge's conclusion that the applicant had poor prospects of rehabilitation was open on the evidence. No error was established in the weight accorded to that factor.

On intoxication, the Court considered whether it was an error to treat the applicant's consumption of ice as aggravating. The judgment examined the nature of ice and its association with violent behaviour, and concluded that the sentencing judge's approach on this point did not constitute appellable error.

On totality, the Court found that the sentencing judge had properly structured the overall sentence by taking into account the earlier assault offences when fixing the commencement dates for the murder sentence. No failure to observe the totality principle was demonstrated.

On manifest excess, the Court applied the established test from Markarian v R and House v R, asking whether specific error was shown or whether the result was unreasonable or plainly unjust. The Court rejected comparisons drawn with four other murder sentencing decisions, noting that murder is a "protean offence" and that each case turns substantially on its own facts. In particular, the Court observed that none of the comparable cases involved violence as extreme as that inflicted in this matter. Given the exceptional brutality of the killing, the terror and suffering experienced by the deceased, the absence of compelling subjective circumstances, and the applicant's limited rehabilitation prospects, the Court found the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • A sentencing judge's finding of poor prospects of rehabilitation will not be disturbed on appeal where that conclusion is open on the evidence before the court.
  • Under the principles in Markarian v R and House v R, an appellate court will only intervene in a discretionary sentencing decision where specific error is identified or the result is unreasonable or plainly unjust.
  • Comparisons with sentences imposed in other murder cases carry limited weight on appeal. Murder is a "protean offence" and differences in facts and circumstances typically produce different sentencing outcomes.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal emphasised the exceptionally violent nature of the offending, the suffering experienced by the victim, and the applicant's limited subjective case as collectively justifying the sentence imposed.
  • The principle of totality requires consideration of how an overall sentence is structured across multiple offences, including the commencement dates of individual components, rather than simply the arithmetic of the total terms.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 35(2), 59(1)

Cases:
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- House v R [1936] HCA 40; 55 CLR 499
- Ma and Pham v R [2007] NSWCCA 240
- Markarian v R [2005] HCA 25; 228 CLR 357
- Mill v R [1988] HCA 70; 166 CLR 59
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v Cimone [2001] NSWCCA 98; 121 A Crim R 433
- R v Gittany [2014] NSWSC 49
- R v Kennedy [2013] NSWSC 1940
- R v Ray [2013] NSWSC 767
- R v Richardson [2012] NSWSC 521
- R v Vuni [2006] NSWCCA 171