Citation: R v Haines; R v Lee [2016] NSWSC 1333
Court: Supreme Court of New South Wales
Date: 29 September 2016
Judge(s): Harrison J
Background
Two co-offenders, referred to here as Haines and Lee, pleaded guilty to the murder of one victim and the armed robbery with wounding of a second victim following a robbery at a Redfern unit on 10 August 2014. Both men, along with a third person, had gone to the unit intending to rob its occupants of drugs and cash. Lee carried a knife; Haines wore a balaclava and, during the struggle, used a hammer he found at the premises.
During the robbery, Lee fatally stabbed the deceased multiple times and also stabbed the second victim, who survived after hospital treatment. Both men were arrested within days of the offences. Each initially denied involvement before ultimately entering guilty pleas shortly before a joint trial was due to commence in June 2016.
Neither offender was charged on the basis of an intention to kill or cause serious bodily harm. Both were convicted of murder on the constructive murder doctrine, meaning their liability arose from the death occurring during the commission of an aggravated robbery to which they were both parties.
Legal Issues
- What is the appropriate sentence for each offender convicted of constructive murder where there was no proven intention to kill or inflict grievous bodily harm?
- How should the court calibrate the disparity in sentences between two co-offenders whose roles in the fatal events differed significantly?
- Did the circumstances warrant a finding of special circumstances justifying a departure from the standard non-parole period ratio?
Decision
Harrison J accepted that constructive murder is not automatically less serious than other forms of murder, and that the degree of seriousness depends on the particular facts of each case. Applying principles from R v Jacobs and Mehajer and Raad v R, his Honour assessed the objective seriousness of the offending as below mid-range, having regard to the low level of planning, the absence of premeditation beyond the moments before the offending, and the absence of any intention that the knife would be used to injure anyone.
On the question of disparity, the court found that Haines' moral culpability was meaningfully lower than Lee's. Lee had arrived at the premises armed with the knife, made independent decisions about its use, and physically inflicted the fatal and wounding blows. Haines, by contrast, arrived unarmed, had no physical contact with the deceased, and his liability was factually and legally derivative of Lee's actions. This distinction was reflected in the difference in the sentences imposed.
The court took into account each offender's significant criminal history, drug addiction, limited prospects of rehabilitation, and the reduced scope for general deterrence given those personal circumstances. Both expressed contrition and remorse, which was considered in mitigation. Neither offender established special circumstances that would warrant adjusting the standard ratio between the non-parole period and the balance of term.
Both offenders were also warned, as required by statute, that they had committed a "serious violence offence" within the meaning of the Crimes (High Risk Offenders) Act 2000, which creates a regime for potential extended supervision or continuing detention orders before a sentence expires.
Orders Made
Haines:
- Armed robbery with wounding: fixed term of 5 years imprisonment, commencing 12 August 2014, expiring 11 August 2019.
- Murder: 14 years and 8 months imprisonment, comprising a non-parole period of 11 years (commencing 12 August 2015, expiring 11 August 2026) and a balance of term of 3 years and 8 months (expiring 11 April 2030). First eligible for parole 12 August 2026.
Lee:
- Armed robbery with wounding: fixed term of 5 years imprisonment, commencing 13 August 2014, expiring 12 August 2019.
- Murder: 17 years and 6 months imprisonment, comprising a non-parole period of 13 years and 6 months (commencing 13 August 2015, expiring 12 February 2029) and a balance of term of 4 years (expiring 12 February 2033). First eligible for parole 13 February 2029.
Key Takeaways
- Constructive murder carries no automatic reduction in seriousness compared to other categories of murder. As the Supreme Court confirmed, the appropriate sentence depends on the specific conduct of each offender and the part each played in the events giving rise to death.
- A meaningful difference in the roles of co-offenders in a constructive murder can and should be reflected in a sentencing disparity. The offender who physically wielded the fatal weapon and made independent decisions about its use attracted a significantly higher sentence than the offender whose liability was derivative.
- Where a robbery is formed on impulse moments before execution, where no intention to use a weapon existed, and where no intention to kill or cause serious injury is established, the objective seriousness of the resulting constructive murder may be assessed as below mid-range.
- Significant criminal history, entrenched drug addiction, and limited rehabilitation prospects are relevant to both the nature of the offender and the reduced weight of general deterrence as a sentencing purpose in that individual's case.
- Under the Crimes (High Risk Offenders) Act 2000, a sentencing court is obliged to warn offenders convicted of a "serious violence offence" that they may become subject to extended supervision or continuing detention orders after their sentence would otherwise expire.
Legislation and Cases Referenced
Legislation:
- Crimes (High Risk Offenders) Act 2000 (NSW), s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Cartwright (1989) 17 NSWLR 243
- R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462
- R v JB; R v RJH [1999] NSWCCA 93
- R v McGarritty (NSWCCA, 10 June 1994, unreported)
- R v Wran [2016] NSWSC 1015
- Raad v R [2011] NSWCCA 138