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Court of Criminal Appeal 13 May 2016

Panetta v R

[2016] NSWCCA 85

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER OFFENDER RESENTENCED

Citation: Panetta v R [2016] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 13 May 2016
Judges: Ward JA at [1]; Adams J at [9]; Bellew J at [60]

Background

The appellant pleaded guilty to the murder of a man he had tracked, abducted, and killed in a Sydney car park in September 2008. The killing arose from a relationship the appellant had formed with the victim's former wife, who had deceived him about her identity and painted the victim as a dangerous criminal. The appellant, whose intellectual functioning was assessed as between the low average and average range, attacked the victim intending to abduct and rob him. The appellant then buried the body in an attempt to conceal the crime.

Critically, the murder only came to light when the appellant voluntarily attended a police station in November 2010 and confessed, more than two years after the killing. No one had known a crime had been committed, let alone that the appellant was involved. His assistance led police directly to the location of the deceased's buried remains.

At first instance, the appellant was sentenced to 17 years imprisonment with a non-parole period of 12 years and 9 months. He appealed, arguing the sentencing judge had erred in assessing the discounts for his guilty plea and his assistance to authorities, among other grounds.

  • Whether the sentencing judge erred in failing to quantify the discount allowed for the appellant's assistance to authorities under the Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
  • Whether the sentencing judge erred in assessing the discount for the guilty plea under s 22
  • Whether the sentencing judge adequately discounted for the voluntary disclosure of guilt
  • Whether the sentencing judge properly applied principles concerning the appellant's intellectual functioning
  • Whether the sentence was, in all the circumstances, manifestly excessive
  • How the court should approach a combined discount for both plea and assistance where the resulting sentence would be unreasonably disproportionate to the nature and circumstances of the offence

Decision

The Court of Criminal Appeal unanimously granted leave to appeal and upheld the appeal on the basis that the sentencing judge had erred in failing to quantify the discount for the appellant's assistance to authorities. This error required the Court to resentence the appellant in accordance with the approach confirmed in Kentwell v The Queen (2014) 252 CLR 601.

On resentencing, the Court (by majority reasoning, with Ward JA agreeing with Bellew J) fixed the appropriate starting point before any discounts at 24 years imprisonment. Although the murder was not premeditated, the attack was described as brutal and the appellant's subsequent conduct, including burying the body to avoid detection, aggravated the seriousness of the offence.

The Court assessed separate discounts of 10% for the guilty plea and 50% for the assistance to authorities. The plea discount was modest because the plea was entered shortly before trial, and while some delay was attributed to issues with legal representation and the need for a psychiatric assessment, the primary consideration for utilitarian value remains the timing of the plea. The assistance discount of 50% reflected the highly unusual circumstances: the appellant had voluntarily disclosed an offence that was entirely unknown to police and led them to the deceased's remains.

A combined discount of 60% would have yielded a total sentence of approximately 9.5 years, which the Court found would be unreasonably disproportionate to the nature and circumstances of the offence within the meaning of s 23(3) of the Crimes (Sentencing Procedure) Act 1999. The Court therefore reduced the combined discount to 50%, producing a total sentence of 12 years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the primary judge quashed
  • In lieu thereof, the appellant is sentenced to a non-parole period of 9 years imprisonment commencing 12 November 2010 and expiring 11 November 2019, with an additional term of 3 years imprisonment commencing 12 November 2019 and expiring 11 November 2022

Key Takeaways

  • A sentencing judge is required to quantify the discount allowed for an offender's assistance to authorities; failing to do so constitutes a quantifiable error that opens the sentence to appeal.

  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, a court must reduce a combined discount for plea and assistance where its unconstrained application would produce a sentence unreasonably disproportionate to the nature and circumstances of the offending.

  • While a combined discount of more than 50% is not categorically unavailable, the Court of Criminal Appeal confirmed it will generally not be warranted, and in this case reduced a notional 60% combined discount to 50% on proportionality grounds.

  • Voluntary disclosure of an entirely unknown offence, accompanied by assistance that led to the recovery of human remains, attracted a 50% discount for assistance to authorities, reflecting what the Court described as a fulsome and highly unusual level of cooperation.

  • The timing of a guilty plea remains the primary consideration when assessing its utilitarian value; a plea entered shortly before the commencement of trial will attract only a modest discount, even where some of the delay is not directly attributable to the offender.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23, 44, 101A
- Criminal Appeal Act 1912 (NSW), ss 5DA, 6(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 11, 12

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Muldrock v R [2011] HCA 39; 244 CLR 120
- CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Isaac v R [2012] NSWCCA 195
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Horne v R [2014] NSWCCA 133
- Hawkins v R [2011] NSWCCA 153
- Knight v R [2006] NSWCCA 292; 164 A Crim R 126
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Ellis (1986) 6 NSWLR 603