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Supreme Court 8 November 2016

R v Perry

[2016] NSWSC 1562

HomicideFirearms & weapons
CRIMINAL LAW MURDER PLEA OF GUILTY SENTENCE WHETHER OFFENDER IS LIKELY TO REOFFEND

Citation: R v Perry [2016] NSWSC 1562
Court: Supreme Court of New South Wales
Date: 8 November 2016
Judge: Mathews AJ

Background

The offender, a 21-year-old man at the time of the offence, pleaded guilty to the murder of an 18-year-old acquaintance on 18 June 2014 at Colyton in New South Wales. The two men had a pre-existing grievance: the offender believed the deceased had been involved in an attempted theft of his motorbike. The fatal encounter followed a confrontation at a local hotel, a series of abusive Facebook messages, and an arrangement to meet for a "one on one" fist fight.

When the offender attended the arranged meeting, he was armed with a .22 calibre firearm approximately 35 to 40 centimetres long, which he had concealed from his mother before leaving home. He pointed the weapon at both the deceased and the deceased's companion. He then fired, striking the deceased in the neck and causing near-immediate death from extensive blood loss. The offender told a psychologist he had brought the firearm intending only to frighten the two men, not to kill.

The plea of guilty was entered on 22 June 2016, the date the trial was due to commence. The Crown had proposed to call 53 witnesses. Sentencing was adjourned to allow evidence and submissions to be presented.

  • Where the offence sat in relation to the midpoint of objective seriousness for murder
  • Whether statutory aggravating or mitigating factors under ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied
  • What discount should be applied for the guilty plea, given it was entered at the commencement of trial
  • Whether the offender's serious spinal condition constituted special circumstances justifying a non-parole period below the statutory ratio
  • Whether the offender was likely to reoffend, and how subjective factors bearing on his character and background affected sentence

Decision

Mathews AJ placed the offence significantly below the midpoint of objective seriousness for murder. While a firearm was used, her Honour noted that without it there would have been no murder, making it an inherent part of the offence in context. The Crown accepted that the shooting was spontaneous and unpremeditated, and that the offender acted with reckless indifference to human life rather than an intention to kill or cause really serious injury. The prior threats from the deceased's companion and the escalating confrontation also bore on the assessment of culpability.

On subjective factors, virtually all considerations weighed in the offender's favour. He had no prior convictions, completed a four-year apprenticeship, maintained stable employment and family relationships, and showed genuine remorse. A psychologist assessed him as presenting a low risk of reoffending. His mother gave evidence and the court accepted that family and community support were strong.

As to the guilty plea, the Crown conceded the plea had high utilitarian value given the scale of the proposed trial. Her Honour allowed a discount of 12.5%, declining to accept the 15% discount sought by defence counsel on the basis that the plea came only at the commencement of trial. The court assessed this as a meaningful but not maximum concession.

The offender suffered a serious spinal condition, which her Honour found would make imprisonment particularly arduous. This constituted special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying a non-parole period slightly below the standard statutory ratio. Three associated firearms offences were taken into account on a Form 1 (a procedure by which additional charges are formally acknowledged at sentencing without separate penalties being imposed).

Orders Made

  • Total sentence of 17 years and 6 months imprisonment for murder (taking into account three firearms offences on Form 1)
  • Non-parole period of 13 years, commencing 19 June 2014 and expiring 18 June 2027
  • Additional (parole) term of 4 years and 6 months, commencing 19 June 2027 and expiring 18 December 2031
  • Earliest eligible release on parole: 18 June 2027

Key Takeaways

  • A murder committed with a firearm is not automatically assessed at or above the midpoint of objective seriousness where the weapon was brought to frighten rather than to kill, the act was spontaneous and unpremeditated, and the mental element was reckless indifference to human life rather than intent to kill.
  • Under the Crimes (Sentencing Procedure) Act 1999, the combination of factors bearing on objective culpability must be assessed holistically; here, the absence of premeditation, the reactive circumstances, and the offender's limited intent collectively placed the offending well below the midline.
  • A guilty plea entered on the first day of a trial involving 53 Crown witnesses may still attract a meaningful discount, though the late timing limits how generous that discount will be. The Supreme Court here settled on 12.5%.
  • A serious medical condition that renders imprisonment particularly harsh can constitute "special circumstances" sufficient to justify departing from the statutory non-parole ratio, even in a murder sentencing.
  • Where additional charges are closely connected to the principal offence and are comparatively minor, it is appropriate to address them by way of a Form 1 rather than imposing separate sentences.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44

Cases
- Muldrock v R [2011] HCA 25