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Supreme Court 5 May 2015

R v Hiroki

[2015] NSWSC 496

Homicide
CRIMINAL LAW MURDER SENTENCE CONVICTION AFTER TRIAL

Citation: R v Hiroki [2015] NSWSC 496
Court: Supreme Court of New South Wales
Date: 5 May 2015
Judge(s): Mathews AJ

Background

The offender was convicted by jury of the murder of Nicholas Katapodis on 27 July 2011 at a residential address in Mount Saint Thomas, a suburb of Wollongong. The offender and his partner (also his first cousin) had met the deceased through a mutual friend earlier that afternoon, and the group returned to the offender's home to continue drinking. An altercation arose after the deceased, heavily intoxicated, urinated on the bathroom walls.

The deceased's body was never found. Extensive bloodstaining throughout the house, virtually all of it carrying the deceased's DNA, established that the killing occurred at the premises. The offender's admission to an acquaintance on 31 July 2011, in which he acknowledged killing a man and asked to borrow land to bury a body, was a significant piece of evidence against him.

A co-accused, who had been charged as a principal to the same murder, was acquitted by the jury. The offender had pleaded guilty to an alternative charge of being accessory after the fact, but that plea was rendered irrelevant by the jury's verdict on the primary murder charge.

  • What sentence was appropriate for murder following a jury conviction, having regard to the maximum penalty (life imprisonment) and the standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999?
  • Were there sufficient grounds to impose a non-parole period shorter than the standard 20 years, and if so, what reasons were required to be recorded under s 54B(3) of that Act?
  • How should the court weigh the objective seriousness of the offence against relevant subjective factors, including the offender's chronic back pain, associated psychological issues, and the spontaneous nature of the killing?

Decision

Mathews AJ assessed the objective gravity of the offence as serious. The killing occurred in the context of a domestic dispute, the body was never recovered, and significant efforts had been made to conceal the crime, including cleaning the scene and leaving for Queensland in the weeks following the death.

On subjective factors, the court accepted that the offender suffered from severe chronic back pain arising from a workplace injury, which had in turn generated significant psychological difficulties. These factors, combined with the finding that the killing was spontaneous and unpremeditated, were identified as the primary reasons for departing below the standard non-parole period of 20 years.

Following the High Court's guidance in Muldrock v The Queen (2011) 244 CLR 120, the court treated the maximum sentence and the standard non-parole period as legislative guideposts rather than mandatory benchmarks, weighing them alongside all other relevant facts and circumstances. The court also took into account the victim impact statements from the deceased's sisters, in the manner prescribed by R v Previtera (1997), while noting that no sentence could adequately reflect the family's loss.

The court recorded its reasons for setting a non-parole period below the standard, as required by s 54B(3) of the Crimes (Sentencing Procedure) Act 1999, identifying spontaneity and the offender's health and psychological circumstances as the principal bases for that course.

Orders Made

  • Conviction formally entered for the murder of Nicholas Katapodis.
  • Total sentence of 23 years imprisonment imposed, comprising a non-parole period of 17 years and a balance of term of 6 years.
  • Sentence backdated to 14 September 2011 (date of arrest and continuous custody).
  • Sentence to expire on 13 September 2034.
  • Earliest eligible parole date: 13 September 2028.

Key Takeaways

  • Under Muldrock v The Queen, the standard non-parole period for murder (20 years) functions as a legislative guidepost, not a presumptive starting point, and must be weighed alongside all facts relevant to the offence and offender.
  • A non-parole period below the standard 20 years was available where spontaneity of the offending combined with significant subjective factors, here chronic pain and associated psychological issues, supported a more lenient approach.
  • Section 54B(3) of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to record its reasons whenever it sets a non-parole period that differs from the standard, whether shorter or longer.
  • The absence of a body and efforts to conceal the offence were treated as aggravating features going to objective seriousness, notwithstanding that the killing itself was found to be unpremeditated.
  • Victim impact statements were taken into account in the manner prescribed by R v Previtera, recognising their significance while acknowledging the range of other sentencing considerations that must also be weighed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 54B(2) and 54B(3)

Cases
- Muldrock v The Queen (2011) 244 CLR 120 (standard non-parole period as legislative guidepost)
- R v Previtera (1997) 94 A Crim R 96 (victim impact statements in murder sentencing)
- Annesbury v R [2009] NSWCCA 445
- Cheung v R [2001] HCA 67; 209 CLR 1
- Imnetu v R [2014] NSWCCA 99
- Kentwell v R [2014] HCA 37
- R v Clarke [2014] NSWSC 1746
- R v Miranda [2002] NSWCCA 89
- R v Way (2004) NSWCCA 131
- Versluys v R [2014] NSWCCA 98