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Supreme Court 15 April 2016

R v Dent

[2016] NSWSC 444

Assault & violenceHomicideTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE MURDER ROBBERY IN COMPANY PLANNED ATTACK BY FOUR MEN VERY SERIOUS EXAMPLE OF MURDER

Citation: R v Dent [2016] NSWSC 444
Court: Supreme Court of New South Wales
Date: 15 April 2016
Judge: R A Hulme J

Background

The offender was tried and convicted by a jury of murdering Anthony Thomas O'Grady at Wickham Park, Newcastle, on 25 March 2014. The offence arose from a planned robbery carried out by the offender and three associates. The victim was lured to the park under the false pretence of attending a party, targeted because he was known to carry cash.

Once in the park, the offender struck the victim heavily to the head, rendering him unconscious. He then hog-tied the victim with rope, gagged him tightly with torn underpants, and left him face down on the ground while attempting to use the victim's bank cards at an ATM. The victim was found dead early the following morning, having suffered a fatal acute subdural haematoma, with asphyxiation from the gag and prone position contributing to his death.

The offender was also sentenced for three contempt of court offences, to which he had pleaded guilty. Those offences arose from his conduct during pre-trial hearings and included using foul and abusive language, committing violence against a co-accused, and making threats against the trial judge.

  • What sentence was appropriate for murder, having regard to the objective seriousness of the offence and the offender's personal circumstances?
  • Whether the offender intended grievous bodily harm, or whether death was a foreseeable consequence of his actions at the time of the assault and subsequent restraint.
  • What sentences were appropriate for three contempt of court offences, and how should they be structured in relation to the primary sentence?
  • How the principle of totality should apply across all sentences.

Decision

Hulme J found the murder to be a very serious example of the offence. Although the jury returned a verdict of constructive murder (killing in the course of an offence carrying a maximum of 25 years or more), his Honour was separately satisfied beyond reasonable doubt that the offender intended at least grievous bodily harm when he struck the victim. Further, when the offender hog-tied and tightly gagged the victim and left him face down, he at minimum would have realised that death was a possible outcome. His Honour concluded that the offender was effectively indifferent to whether the victim lived or died.

The offender presented no favourable subjective circumstances. He was 53 at the time of the offences, was on bail, and had an extensive criminal history that his Honour found had produced a significant degree of institutionalisation. There was no remorse, no plea of guilty, and prospects of rehabilitation were described as very bleak. The standard non-parole period for murder is 20 years, but his Honour found that the purposes of sentencing called for a more severe penalty, fixing a non-parole period of 30 years for the murder with a balance of term of 10 years.

On the three contempt charges, Hulme J described all three as very serious examples of their type. Fixed terms of imprisonment were imposed for each, on the basis that there was no utility in setting a non-parole period for those offences given the circumstances. His Honour applied the totality principle by ordering partial accumulation: the contempt sentences were accumulated upon one another and partly accumulated upon the murder sentence, producing a total effective sentence of 42 years with a non-parole period of 32 years.

The robbery in company inflicting grievous bodily harm charge was also the subject of a conviction, but Hulme J agreed with the parties that it added nothing to the offender's criminality beyond the murder, and no separate penalty was imposed.

Orders Made

  • Contempt count 1: Fixed term of 1 year, commencing 21 April 2014, expiring 20 April 2015.
  • Contempt count 2: Fixed term of 1 year, commencing 21 January 2015, expiring 20 January 2016.
  • Contempt count 3: Fixed term of 6 months, commencing 21 October 2015, expiring 20 April 2016.
  • Murder: Non-parole period of 30 years commencing 21 April 2016 (expiring 20 April 2046), with a balance of term of 10 years expiring 20 April 2056.
  • Robbery in company inflicting grievous bodily harm: Convicted; no penalty imposed (s 10A, Crimes (Sentencing Procedure) Act 1999).
  • Total effective sentence: 42 years with a non-parole period of 32 years. Earliest eligible parole date: 20 April 2046.

Key Takeaways

  • A finding of constructive murder does not prevent a sentencing court from separately concluding, to the criminal standard, that the offender also intended grievous bodily harm or foresaw the possibility of death from their conduct.
  • Where an offender presents no favourable subjective features, remains on bail at the time of the offence, and has an extensive criminal history producing institutionalisation, the sentencing purposes of deterrence and community protection carry significant weight and can support a sentence well above the standard non-parole period.
  • The Supreme Court treated all three contempt offences as serious on their individual facts, covering violence against a co-accused and direct threats to a trial judge, warranting fixed custodial terms rather than non-parole periods, given the sentencing context.
  • Under the totality principle, partial accumulation of sentences across multiple offences is an available mechanism to ensure the overall sentence reflects the full criminality without being disproportionate.
  • Conviction on a related count (here, robbery in company inflicting grievous bodily harm) does not require imposition of a separate penalty where the underlying criminality is wholly subsumed by the primary offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18 (murder), 326 (robbery in company inflicting grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 22 (guilty plea discount), 61 (standard non-parole periods), 10A (conviction without penalty)

Cases:
- Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732
- Prothonotary v Wilson [1999] NSWSC 1148
- R v Whiley (1993) 31 NSWLR 314
- Steven Smith (No. 2) [2015] NSWSC 1141