Citation: R v Batcheldor [2015] NSWSC 1688
Court: Supreme Court of New South Wales
Date: 13 November 2015
Judge(s): Bellew J
Background
The offender was originally convicted by a jury in 2012 of specially aggravated kidnapping and murder arising from events in January 2010 in the Wollongong area. The victim, referred to throughout as the deceased, was wrongly suspected of involvement in a burglary at the offender's home. He was detained and subsequently killed by the offender's co-accused, Richard Walsh.
The offender successfully appealed her convictions to the Court of Criminal Appeal in 2014, which ordered a retrial. The Crown did not seek to retry her on the original charges. Instead, in September 2015, the Crown presented a fresh indictment to which the offender pleaded guilty: one count of aggravated kidnapping (detaining the deceased without consent to obtain information about stolen property, while in the company of Walsh), and one count of being an accessory after the fact to Walsh's murder of the deceased.
The sentencing proceedings were briefly adjourned at the Crown's request to allow the deceased's family, who were overseas, to attend. Victim impact statements were received from the deceased's parents and siblings.
Legal Issues
- Whether the sentencing judge could adopt factual findings made at the original trial for the purpose of resentencing on the fresh charges.
- How the "ceiling principle" applied, given the offender was being sentenced for offences carrying lower maximum penalties than the original charges.
- The objective seriousness of the offending on each count.
- The extent of any discount for the utilitarian value of the guilty pleas, given they were entered at a late stage.
- Whether sentences for the two counts should be accumulated, and if so, to what extent.
- The weight to be given to late expressions of remorse and prospects of rehabilitation.
Decision
Bellew J declined to simply adopt the factual findings from the original trial. Because the Crown had proceeded on an agreed statement of facts, and the original trial evidence was not before the court in these proceedings, the sentencing had to be conducted solely on the evidence tendered in the resentencing proceedings.
The ceiling principle applied because the maximum penalties for the fresh charges were substantially lower than those for the original offences of specially aggravated kidnapping and murder. The operation of the principle, as discussed by Bathurst CJ in Armstrong v R [2015] NSWCCA 273, constrained the sentences that could be imposed, and Bellew J was mindful of it throughout.
On the question of plea discounts, the pleas were entered at a late stage. While some utilitarian value attached to them, the discount available was limited given the timing. The offender's expressions of remorse were also noted as late, which affected the weight given to them, though her prospects of rehabilitation were assessed as favourable.
Accumulation was required because, although both offences arose from the same general circumstances, the conduct underlying each count was sufficiently distinct that a sentence for one could not comprehend the criminality of the other. General deterrence was identified as a particularly important factor in respect of the accessory after the fact offence.
Orders Made
- Count 1 (aggravated kidnapping): Convicted and sentenced to a fixed term of 5 years imprisonment, commencing 22 October 2011 and expiring 21 October 2016. No non-parole period imposed.
- Count 2 (accessory after the fact to murder): Convicted and sentenced to a non-parole period of 3 years and 4 months commencing 22 October 2013 and expiring 21 February 2017, with a balance of term of 1 year and 2 months commencing 22 February 2017 and expiring 21 April 2018.
- The offender became eligible for parole on 21 February 2017, with the sentence expiring on 21 April 2018.
- Both sentences were backdated to account for pre-sentence custody, consistent with the approach taken at the original sentencing.
Key Takeaways
- Where a Crown presents a fresh indictment after a successful appeal, the sentencing judge cannot simply adopt factual findings from the original trial. Sentencing must proceed on the evidence actually placed before the court in the fresh proceedings.
- The ceiling principle limits the sentences available on resentencing where the fresh charges carry lower maximum penalties than the original offences. Armstrong v R [2015] NSWCCA 273 provides the relevant analysis of how the principle operates.
- A guilty plea's utilitarian value, and therefore the available discount, is reduced when the plea is entered at a late stage in proceedings.
- Where two offences arise from the same factual circumstances but involve distinct conduct, accumulation of sentences may still be required if the criminality of one cannot be comprehended within the sentence for the other, consistent with R v XX [2009] NSWCCA 115.
- General deterrence carries significant weight in sentencing for accessory after the fact to murder, reflecting the seriousness with which the law treats assistance given to a known murderer.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a) (aggravated kidnapping, maximum 20 years) and s 349(1) (accessory after the fact to murder, maximum 25 years)
Cases:
- Armstrong v R [2015] NSWCCA 273
- Batcheldor v R; Walsh v R [2014] NSWCCA 252
- Kaminic v R [2014] NSWCCA 116
- R v Batcheldor [2012] NSWSC 1398
- R v Newell [2004] NSWCCA 183
- R v NP [2003] NSWCCA 195
- R v PB [2008] NSWCCA 109; (2008) 184 A Crim R 552
- R v Serone [2012] NSWSC 1232
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Urriola [2010] NSWSC 367
- R v Walsh [2012] NSWSC 1399
- R v Ward [2004] NSWSC 420
- R v XX [2009] NSWCCA 115