AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 6 May 2016

Purtill v R

[2016] NSWCCA 80

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER SENTENCE OF 28 YEARS WITH A NON PAROLE PERIOD OF 21 YEARS

Citation: Purtill v R [2016] NSWCCA 80
Court: Court of Criminal Appeal, NSW
Date: 6 May 2016
Judges: Hoeben CJ at CL (principal judgment); Campbell J and Natalie Adams J (agreeing)

Background

The appellant was convicted after trial of the murder of a 60-year-old businessman at Lennox Head in February 2010. The appellant killed the deceased by cutting his throat with a knife. The body was subsequently buried in a bush grave by the appellant and his brother. The appellant was arrested on 26 February 2010 and remained in custody from that date.

At sentence, Harrison J in the Supreme Court assessed the offence as falling in the middle range of objective seriousness for murder. The sentencing judge identified several aggravating factors, including the use of a weapon and the concealment of the body. The appellant showed no remorse and maintained his denial of involvement throughout the proceedings.

The appellant was sentenced to 28 years' imprisonment with a non-parole period of 21 years. The standard non-parole period for murder under the Crimes (Sentencing Procedure) Act 1999 (NSW) is 20 years. The appellant sought leave to appeal, arguing the sentence was excessive in light of the mid-range finding and the sentencing judge's treatment of subjective circumstances and special circumstances.

  • Whether the sentencing judge erred by imposing a non-parole period exceeding the standard non-parole period of 20 years, given that the offence was assessed as falling in the mid-range of seriousness.
  • Whether the sentencing judge was required to provide explicit reasons for departing upward from the standard non-parole period, and if so, what those reasons needed to address.
  • Whether the sentencing judge erred in failing to make a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which could have reduced the non-parole period relative to the total term.

Decision

The Court of Criminal Appeal refused leave to appeal, finding the single ground of appeal was "fundamentally misconceived."

On the first and second questions, Hoeben CJ at CL confirmed the approach established in Muldrock v The Queen (2011) 244 CLR 120: the standard non-parole period is a legislative guideline and one of two reference points a sentencing judge must take into account. A mid-range finding of objective seriousness does not fix the non-parole period at 20 years, nor does it create a presumption against a longer period. The sentencing judge was required to weigh all relevant factors, and the presence of significant aggravating circumstances and the absence of remorse or contrition provided ample justification for a non-parole period above the standard.

The Court held that no specific reasons are required for "departing" from the standard non-parole period as though it were a mandatory starting point. The standard non-parole period functions as a guidepost in the overall sentencing process, not a floor from which any upward movement demands independent justification. The sentencing judge's reasons, read as a whole, clearly reflected appropriate consideration of all relevant factors.

On the special circumstances question, the Court confirmed that even where facts capable of constituting special circumstances exist, a sentencing judge retains a wide discretion to decline making such a finding. Harrison J had expressly addressed the matters raised, including the appellant's first custodial sentence and his status as a SMAP (Special Management) prisoner, and concluded that a balance of term of 7 years was more than adequate for any rehabilitative purpose. No error in that reasoning was established.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a mid-range assessment of objective seriousness does not require or presumptively produce a non-parole period equal to the standard non-parole period for murder.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 operates as a legislative guidepost to be considered alongside all other sentencing factors, not as a starting point that triggers reasons for any departure.
  • A sentencing court is not compelled to make a finding of special circumstances merely because facts capable of supporting such a finding are present. The decision involves both a factual identification of those circumstances and a judgment about whether they justify a reduced proportional relationship between the non-parole period and the head sentence.
  • Established authority holds that serving a first custodial sentence is not, of itself, a basis for finding special circumstances, a position the Court reaffirmed by reference to several prior decisions.
  • Appellate intervention in special circumstances determinations is reserved for cases where the non-parole period is manifestly inadequate or manifestly excessive; it does not extend to mere disagreement with a sentencing judge's evaluative judgment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), s 54B, Part 4 Division 1A (standard non-parole periods and special circumstances)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c) (leave to appeal against sentence)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Purtill [2012] NSWSC 1475 (the sentence proceedings appealed from)
- Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Ramos v R [2015] NSWCCA 313
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
- Clarke v R [2009] NSWCCA 49
- Trad v R [2009] NSWCCA 56
- Collier v R [2012] NSWCCA 213
- R v CM [2013] NSWCCA 341