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Supreme Court 27 March 2015

R v AX

[2015] NSWSC 317

HomicideFraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE MURDER OFFENDER (23 YEARS OLD) BEATS 76 YEAR OLD VICTIM TO DEATH OBJECTIVE GRAVITY OF CRIME VERY HIGH

Citation: R v AX [2015] NSWSC 317
Court: Supreme Court of New South Wales
Date: 27 March 2015
Judge: Johnson J

Background

The offender, referred to by the pseudonym AX to protect his identity following assistance provided to authorities, was 23 years old at the time of the offence. He had been living rent-free with his wife and two young daughters in the home of a family friend in The Rock, New South Wales. The victim, a 76-year-old man, lived in a granny flat at the rear of the same property.

In early April 2014, the offender secretly removed a cheque from the victim's cheque book and deposited it into his own account, stealing $30,000. On the morning of 16 April 2014, the victim discovered the money was missing from his bank account. He told people at the local IGA and at the Men's Shed that he intended to go home and contact his bank.

When the offender learned that the victim had discovered the fraud, he armed himself and entered the granny flat. He initially attacked the victim with a tyre iron, intending to knock him out. He then retrieved a heavier pipe, returned, and continued the assault with intent to kill. The victim died of his injuries that day. The offender fled to Melbourne by train and later made admissions to others. He returned voluntarily and was arrested.

  • What sentence is appropriate for the murder, having regard to the objective gravity of the offence?
  • What weight should be given to the offender's early plea of guilty?
  • What discount, if any, should be applied for assistance provided to authorities on an unrelated matter?
  • Were there subjective circumstances, including remorse and prospects of rehabilitation, that warranted any mitigation?
  • Were there special circumstances justifying a departure from the standard statutory ratio between the non-parole period and the balance of term?

Decision

Johnson J found the objective gravity of the offence to be very high. The killing was motivated by a desire to prevent discovery of a planned financial fraud. Although the murder itself was an impulsive response to the risk of exposure rather than a premeditated killing, the offender had intentionally committed the underlying fraud. The attack involved the use of multiple weapons and an intention to kill.

The court accepted a finding of remorse, noting the offender's early plea of guilty and his evidence at the sentencing hearing. However, Johnson J expressed caution about the offender's prospects of rehabilitation, describing them as difficult to assess at that time.

The offender was entitled to a combined discount of 30 per cent: 25 per cent for his early plea of guilty, and 5 per cent for assistance provided to authorities in an unrelated drug supply matter. A pseudonym was used in the sentencing remarks precisely because of the sensitivity of that assistance.

Johnson J set a head sentence of 38 years before the discount, reduced to 26 years and 7 months after the 30 per cent reduction. No special circumstances were found to justify departing from the standard non-parole period ratio, beyond the minor adjustment occasioned by rounding. The non-parole period of 19 years and 11 months fell slightly below the standard non-parole period of 20 years, and the judgment records the reasons for this as required by section 54B(3) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 19 years and 11 months, commencing 19 May 2014 and expiring 18 April 2034.
  • The balance of term was fixed at 6 years and 8 months, commencing 19 April 2034 and expiring 18 December 2040.
  • The earliest date of eligibility for release to parole was fixed as 19 April 2034.
  • The offender was advised, pursuant to section 25C(1) of the Crimes (High Risk Offenders) Act 2006, of the existence of that Act and its application to him and the offence.

Key Takeaways

  • A murder committed to prevent discovery of a prior fraud was assessed as carrying very high objective gravity, even where the killing itself was impulsive rather than premeditated, because of the deliberate nature of the underlying scheme and the use of weapons with intent to kill.
  • An early plea of guilty attracted a 25 per cent discount, while assistance to authorities on an unrelated criminal matter added a further 5 per cent, producing a combined discount of 30 per cent from the head sentence.
  • Caution in assessing rehabilitation prospects does not preclude a finding of remorse; the Supreme Court treated these as distinct considerations in fixing the appropriate sentence.
  • Where the head sentence and non-parole period are lengthy, a court may decline to find special circumstances to extend the parole period beyond the standard statutory ratio, on the basis that the parole period as calculated already provides sufficient opportunity for supervised reintegration.
  • Under section 54B(3) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must record its reasons whenever it sets a non-parole period shorter than the applicable standard non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including sections 54B(3)
- Crimes (High Risk Offenders) Act 2006 (NSW), section 25C(1)

Cases:
- R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299
- R v Previtera (1997) 94 A Crim R 76