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Supreme Court 15 May 2015

R v Spicer

[2015] NSWSC 519

Assault & violenceHomicide
CRIMINAL SENTENCE MURDER JOINT CRIMINAL ENTERPRISE VERDICT OF GUILTY FOLLOWING TRIAL WHETHER OFFENDER LIKELY TO RE

Citation: R v Spicer [2015] NSWSC 519
Court: Supreme Court of New South Wales
Date: 15 May 2015
Judge(s): Harrison J

Background

In the early hours of 27 October 2011, Katherine Foreman, a solicitor, was killed in her home at Corrimal, New South Wales. Petrol was poured into her upstairs bedroom while she slept and then ignited. She was later found on the landing at the top of the stairs. The fire destroyed the bedroom rapidly.

The offender, Bernard Justin Spicer, was one of four people involved in the killing. The others, Wendy Evans, Bradley Rawlinson and Michelle Proud, had already been convicted and sentenced. Evans had recruited assistance through Proud (the offender's de facto partner) to "bash" the deceased, acting on behalf of or in consultation with Rawlinson, who had been in an intimate relationship with the deceased. The offender volunteered for the task and agreed to be paid $3,000.

The offender was found guilty of murder by a jury on 5 December 2014, following a trial. The Crown had rejected an earlier offer to plead guilty to the lesser charge of break, enter and commit an indictable offence. These remarks addressed the question of what sentence the offender should receive.

  • What sentence is appropriate for murder committed in the context of a joint criminal enterprise involving arson?
  • How should the standard non-parole period of 20 years for murder be applied following Muldrock v R?
  • Where does this offending fall on the range of objective seriousness?
  • What weight should be given to the role of co-offenders in influencing the offender's conduct?
  • Whether the offender intended to kill the deceased, as opposed to intending some lesser harm?
  • What discount, if any, applies given the absence of remorse, prior criminal history, and the offender's personal circumstances?
  • How should parity with the sentences of co-offenders be maintained?

Decision

Harrison J found that the offending was extremely serious. The killing was premeditated, planned over multiple days, and carried out in the victim's own home while she slept. The offender took concrete steps toward the crime: collecting cash through an intermediary, purchasing accelerants and equipment in the early hours, and entering the deceased's home using keys provided by a co-offender. These were not the acts of a spontaneous or impulsive participant.

The Court considered whether the offender had been manipulated or unduly influenced by co-offenders, particularly by Rawlinson, who appeared to be the driving force behind the killing. His Honour was not persuaded that this significantly reduced the offender's culpability. The offender was an adult who volunteered for the task and accepted payment for it. The Court also assessed the question of intent, finding it more likely that the offender intended at least to cause grievous bodily harm, even if an intent to kill was not firmly established.

The offender showed no remorse and did not have the benefit of a plea of guilty. He was not a person of prior good character. His Honour also found that general deterrence carried significant weight in a case involving a killing planned and carried out for financial reward.

The sentences of the co-offenders provided a parity framework. Evans received 24 years (non-parole 18 years), Rawlinson received 36 years (non-parole 27 years), and Proud received 20 years (non-parole 14 years). The offender's sentence was set above Evans and Proud, reflecting his direct role in entering the home and pouring and igniting the petrol, but below Rawlinson, who was found to be the instigator.

Orders Made

  • Bernard Justin Spicer convicted of the murder of Katherine Foreman.
  • Sentenced to imprisonment for 32 years, commencing 21 December 2011 and expiring 20 December 2043.
  • Non-parole period of 24 years, expiring 20 December 2035.

Key Takeaways

  • A murder committed pursuant to a premeditated plan, in the victim's home, and for financial reward placed this offending at a high level of objective seriousness, even if not at the absolute worst category.
  • Following Muldrock v R, the standard non-parole period of 20 years for murder operates as a reference point for a hypothetical mid-range offence; sentencing courts must identify all relevant aggravating and mitigating factors and arrive at an appropriate sentence by weighing them holistically.
  • The absence of remorse, the lack of a guilty plea, and a prior criminal history each operated as factors adverse to the offender and contributed to a lengthier sentence than those imposed on co-offenders who pleaded guilty or who played lesser roles.
  • Parity with co-offenders is a live consideration in joint enterprise sentencing: where multiple participants have already been sentenced, the new sentence must be explicable by reference to differences in individual culpability.
  • Financial motive for a killing carries significant weight in assessing the need for general deterrence, given the deliberately calculated nature of the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B(2) and (3)

Cases
- Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Johnson [2004] NSWCCA 76
- R v Kristi Anne Abrahams [2013] NSWSC 952
- R v Patsalis [2001] NSWCCA 476
- R v Pilley (1991) 56 A Crim R 202
- R v Shankley [2003] NSWCCA 253
- R v Spathis [2001] NSWCCA 476