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Court of Criminal Appeal 16 December 2016

Cramp v R

[2016] NSWCCA 305

Assault & violenceHomicide
CRIMINAL LAW APPEAL AGAINST SENTENCE MURDER MOTIVE DANGEROUSNESS PURPOSES OF SENTENCING CRIMINAL LAW

Citation: Cramp v R [2016] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 16 December 2016
Judges: Gleeson JA, Fagan J, N Adams J

Background

The applicant was convicted by a jury of the murder of a fellow employee at an industrial waste yard in St Marys on 21 February 2013. In the early hours of that morning, following a domestic argument and drug use, the applicant attended the yard carrying two unsheathed knives in a shoulder bag. After a brief interaction with the deceased in the lunchroom, the applicant followed him through the yard, and in circumstances not directly witnessed, stabbed him through the neck with sufficient force to sever the spinal cord. The deceased died from his injuries.

The sentencing judge at first instance (M Adams J) imposed a total term of 40 years' imprisonment with a non-parole period of 30 years. The applicant had a significant prior criminal history, including an earlier conviction for maliciously wounding with intent to do grievous bodily harm involving a knife attack, as well as subsequent offences of violence. He had been on a good behaviour bond at the time of the murder.

The applicant sought leave to appeal against the severity of the sentence on two grounds: first, that the sentencing judge erred by treating his dangerousness as increased because no motive could be identified; and second, that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the inability to identify a motive for the murder as a factor that increased the applicant's assessed dangerousness, and thus aggravated the sentence.
  • Whether the sentence of 40 years with a non-parole period of 30 years was manifestly excessive having regard to objective seriousness, subjective circumstances, and comparable cases.

Decision

On the first ground, the Court examined the sentencing judge's remarks and found that the reference to unexplained motive was not treated as an independent aggravating factor. Rather, the judge had incorporated the absence of an identifiable motive into a broader assessment of the applicant's dangerousness in the context of his history of violence. The Court found no demonstrated error in that reasoning, noting that the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW) include protection of the community, and that a sentencing court may have regard to dangerousness as one consideration among several. This ground was not made out.

On the second ground, the Court accepted that the murder was of significant objective seriousness. The attack was unprovoked, carried out with a lethal weapon, and resulted in instantaneous death. The applicant's criminal antecedents, including his prior knife attack and pattern of domestic violence, were substantial adverse features. The applicant did not give evidence at sentence and placed no psychiatric or psychological material before the court, meaning no finding of remorse could be made.

Nonetheless, the Court was persuaded that the sentence was manifestly excessive. It agreed with the sentencing judge's own conclusion that the offence was not in the "worst category" of murder, and found that neither the objective circumstances nor the adverse subjective features justified a sentence of the severity imposed. Applying the principle from Veen v The Queen [No 2] (1988) 164 CLR 465, the Court acknowledged the relevance of the prior record to questions of retribution, deterrence and community protection, while remaining mindful of the constraint against imposing what would amount to purely preventative detention. A materially lower sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by M Adams J on 19 March 2015 was set aside.
  • In substitution, the applicant was sentenced to imprisonment with a non-parole period of 25 years and 6 months, commencing 2 March 2013 and expiring 1 September 2038, with a balance of term of 8 years and 6 months commencing 2 September 2038 and expiring 1 March 2047.
  • The applicant is eligible for release on parole on expiry of the non-parole period.

Key Takeaways

  • A sentencing court's reference to the absence of an identifiable motive does not constitute error where that observation forms part of a broader, permissible assessment of an offender's dangerousness, rather than standing as an independent aggravating factor.
  • Under the principle confirmed in Veen v The Queen [No 2], a prior record of violence is relevant to sentencing because it may demonstrate a continuing attitude of disobedience of the law, bearing on retribution, deterrence and community protection. However, there remains a clear distinction between preventative detention, which is impermissible, and an appropriately calibrated sentence that takes protection of society into account.
  • In dismissing the first ground of appeal, the Court of Criminal Appeal confirmed that the correct question is whether the sentencing judge actually treated an unexplained motive as an aggravating circumstance, not merely whether such language appeared in the remarks on sentence.
  • Even where no demonstrated error is established on a specific ground, a finding of manifest excess remains available where the overall sentence is unreasonable or plainly unjust when assessed against the full objective and subjective circumstances of the case.
  • The original sentence of 40 years (non-parole period of 30 years) was reduced to a total term of 34 years (non-parole period of 25 years and 6 months), reflecting a murder assessed as serious but not in the worst category, with no psychiatric evidence, no demonstrated remorse, and a significant but not uniquely aggravated criminal history.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), s 33

Cases:
- Veen v The Queen [No 2] (1988) 164 CLR 465
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v The Queen (2005) 228 CLR 357
- Lowndes v The Queen (1999) 195 CLR 665
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Ibbs v The Queen (1987) 163 CLR 447
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- R v McNaughton (2006) 66 NSWLR 566
- Louizos v R; R v Louizos [2009] NSWCCA 71
- Mulato v Regina [2006] NSWCCA 282
- Purtill v R [2016] NSWCCA 80
- Regina v Cramp [2004] NSWCCA 264
- R v Gordon Reginald Cramp [2015] NSWSC 271
- R v Kelsall [2015] NSWSC 480