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Supreme Court 19 August 2016

R v Raymond Roff

[2016] NSWSC 1151

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER COMMITTED IN COMPANY MURDER OF CO OFFENDER’S DE FACTO HUSBAND

Citation: R v Raymond Roff [2016] NSWSC 1151
Court: Supreme Court of New South Wales
Date: 19 August 2016
Judge(s): Fagan J

Background

The offender, a 51-year-old man from Dubbo, was convicted by jury of the murder of Alois Rez on 29 July 2013. The deceased was the de facto husband of Sarah Tarrant, with whom the offender had been conducting a passionate affair since early 2013. The offender and Tarrant agreed on 25 July 2013 to kill the deceased so they could be together openly.

Tarrant was separately tried and found guilty of manslaughter. Fagan J deferred sentencing the offender until after Tarrant's sentence hearing, so that both proceedings could be considered together for parity purposes.

The offender had no prior criminal convictions. He had a long history of hard work, family dedication, and selfless conduct, including raising his younger siblings after his father's death and caring for his wife through serious mental illness and cancer until her death in 2012. The murder was described by the court as an extraordinary departure from his otherwise sound character and morality.

  • Whether the offender's culpability was so extreme as to warrant the statutory maximum of life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What non-parole period and balance of term were appropriate for the murder, having regard to the 20-year standard non-parole period, the offender's personal circumstances, the planned nature of the offence, and other aggravating and mitigating factors
  • How to deal with two related firearms offences, one taken on a Form 1 and one transferred from the Local Court

Decision

Fagan J declined to impose the maximum sentence of life imprisonment, finding that the case did not reach the threshold under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requiring the community interest in retribution, punishment, protection, and deterrence to be met only through a life term. A finite sentence with a non-parole period was therefore required, with the 20-year standard non-parole period as a reference point.

The court identified several significant aggravating features: the murder was planned over several days; it was committed in company with Tarrant; an intoxicating substance was used on the deceased; the offender intended to kill; there was no remorse; and the offender participated in disposing of the body. These factors pointed toward a non-parole period above the standard.

Mitigating factors included the offender's complete absence of prior criminal history, strong prospects of rehabilitation, his demonstrated character and the exceptional circumstances of the offence arising from an emotionally destabilising infatuation following his wife's death, and his physical disabilities. The court weighed these against the gravity of the conduct.

On the firearms matters, an unrelated charge of possessing a prohibited pistol was taken into account on a Form 1 (meaning it was considered in setting the overall sentence without a separate penalty). A second charge of possessing unauthorised firearms was dealt with by way of a fine, the court noting the absence of any aggravating criminal context for the unauthorised possession.

Orders Made

  • The offender was sentenced for murder to a non-parole period of 24 years, commencing 9 August 2013 and expiring 8 August 2037, with a balance of term of 8 years, expiring 8 August 2045. The offender becomes eligible for parole at the expiry of the non-parole period.
  • The offender was notified under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the provisions of that Act apply to him and to this offending.
  • For the offence of possessing unauthorised firearms contrary to s 7A(1) of the Firearms Act 1996 (NSW), the offender was fined $2,000.

Key Takeaways

  • A murder conviction does not automatically attract life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act 1999; the court must be satisfied that the level of culpability is so extreme that no finite term can meet the community interest in retribution, punishment, protection, and deterrence.
  • Planning, commission in company, use of an intoxicating substance, intention to kill, absence of remorse, and post-offence disposal of the body are each capable of elevating a murder sentence above the 20-year standard non-parole period.
  • The Supreme Court treated the offender's lifelong good character, complete absence of prior convictions, and strong rehabilitation prospects as genuine mitigating factors, even in the context of a serious planned murder.
  • Where a firearms charge transferred from the Local Court involves no aggravating criminal context, a modest financial penalty may be appropriate, even when the primary offence attracts a lengthy custodial sentence.
  • Under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to notify an offender that the high-risk offender provisions may apply to them upon their eventual release.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 61(1), Part 4 Division 1A (standard non-parole period for murder)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Firearms Act 1996 (NSW), s 7A(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases cited: No cases were cited in the portions of the judgment provided.