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Supreme Court 16 December 2016

R v Swan; R v Kimura (No 2)

[2016] NSWSC 1819

Homicide
CRIMINAL LAW SENTENCE MURDER ALLEGED LIABILITY OF CO DIFFERING LEVELS OF MORAL CULPABILITY APPLICATION OF PARITY PRINCIPLES

Citation: R v Swan; R v Kimura (No 2) [2016] NSWSC 1819
Court: Supreme Court of New South Wales
Date: 16 December 2016
Judge(s): N Adams J

Background

In the early hours of 15 April 2013, two offenders entered a Department of Housing apartment building in Redfern and assaulted and robbed a 77-year-old man living alone. The victim died from his injuries approximately eight months later. CCTV footage, DNA evidence, fingerprint evidence, and items recovered from a nearby unit connected both offenders to the crime.

A jury convicted both men of murder on 20 May 2016. The Crown case proceeded on the basis of extended joint criminal enterprise: both offenders agreed to assault and rob the victim and to inflict really serious bodily harm upon him. The offenders had given competing accounts at trial, each attempting to minimise or deny their own involvement, but the jury rejected their evidence.

The sentencing hearing addressed the appropriate penalties for each offender, with particular attention to their differing roles, levels of moral culpability, and individual circumstances, including that one offender would serve his sentence in protective custody.

  • What findings of fact could be made about each offender's role in the murder, given the jury's verdicts and the competing evidence at trial?
  • How should differing levels of moral culpability be reflected in sentence where co-offenders are convicted of the same offence?
  • How should the parity principle apply where the offenders have materially different backgrounds, roles, and custodial circumstances?
  • What weight, if any, should be given to the fact that one offender would serve his sentence in protective custody?
  • How should prior sentences already served in custody be taken into account in backdating or accumulating sentences?

Decision

Adams J made detailed findings of fact about each offender's role. The court determined that one offender was the more dominant participant who physically inflicted the most serious violence, while the other played a lesser but still active role in the joint criminal enterprise. These factual findings, made to the requisite standard of proof, directly informed the degree of moral culpability attributed to each man.

The court considered a range of subjective factors for each offender, including their personal histories, backgrounds, and the absence of any expressions of remorse. The principles from cases such as R v Fernando (concerning offenders with backgrounds of disadvantage) and Bugmy v R (on the ongoing relevance of deprived backgrounds in sentencing) were applied. Neither offender had offered a plea of guilty, and neither had provided assistance to authorities.

On parity, the court acknowledged that the parity principle requires sentences for co-offenders to be consistent unless there is a justifiable distinction. The court found that the different levels of culpability justified a meaningful difference in the sentences imposed. The court also took into account that one offender would serve his entire sentence in protective custody, a circumstance that increases the hardship of imprisonment and was treated as a mitigating factor in calibrating that offender's sentence.

Partial backdating of sentences was applied to reflect time already spent in custody. The court declined to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for either offender, noting that the parole periods would be substantial in any event.

Orders Made

William Rodney Swan:
- Convicted of murder; sentenced to a total term of 26 years and 6 months imprisonment, comprising a non-parole period of 19 years and 6 months (commencing 17 October 2013, expiring 16 April 2033) and a balance of term of 7 years (expiring 16 April 2040). Eligible for parole on 16 April 2033.
- For possession of a prohibited drug contrary to s 10(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW): conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW); no further penalty imposed.

Thompson Kimura:
- Convicted of murder; sentenced to a total term of 23 years imprisonment, comprising a non-parole period of 17 years (commencing 17 April 2013, expiring 16 April 2030) and a balance of term of 6 years (expiring 16 April 2036). Eligible for parole on 16 April 2030.

Key Takeaways

  • Differing levels of moral culpability among co-offenders convicted of the same offence can, and in this case did, justify a material difference in sentence length, even where both offenders are convicted on a joint criminal enterprise basis.
  • Under the parity principle as applied here, the sentencing court must identify and articulate a justifiable basis for any disparity between co-offenders' sentences; shared liability for the same crime does not mandate identical punishment.
  • A finding that an offender will serve their entire sentence in protective custody is a recognised mitigating circumstance, reflecting the increased hardship of that custodial experience relative to the general prison population.
  • The principles in Bugmy v R and R v Fernando confirm that a background of profound disadvantage and deprivation remains a relevant sentencing consideration, though it does not diminish the objective gravity of serious violent offending.
  • Where sentencing judges backdate sentences to reflect time served in custody, the extent of that backdating falls within judicial discretion and may be applied partially rather than in full, particularly where prior sentences overlap.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(e), 21A(2)(eb), 21A(2)(j), 22A, 28(4), 29(4), 44(2), 61(1)
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 10(1)
- Evidence Act 1995 (NSW), s 184

Cases:
- Bugmy v R (2013) 249 CLR 571
- Cheung v The Queen (2001) 209 CLR 1
- Lowe v The Queen (1984) 154 CLR 606
- Muldrock v R (2010) 244 CLR 120
- Munda v Western Australia (2013) 249 CLR 600
- R v Fernando (1992) 76 A Crim R 58
- R v McNaughton (2006) 66 NSWLR 566
- R v Olbrich (1999) 199 CLR 270
- Royall v R (1991) 172 CLR 378
- Apps v R [2006] NSWCCA 290
- KR v R [2012] NSWCCA 32
- R v AX [2015] NSWCCA 317
- R v Biljuh (No 7) [2015] NSWSC 1917
- R v Hearne (2001) 124 A Crim R 451
- R v Isaacs (1997) 41 NSWLR 374