Citation: [2016] NSWSC 483
Court: Supreme Court of New South Wales
Date: 21 April 2016
Judge: Mathews AJ
Background
The offender was charged alongside a co-accused following an armed robbery at a Sydney fruit market in October 2013. During the robbery, the offender wielded a hammer while his co-accused carried a pistol. When a store employee grabbed the offender from behind to prevent his escape, the co-accused returned and shot the employee twice. The employee died from his wounds.
The offender was apprehended at the scene and pleaded guilty to the armed robbery at the market. He contested the murder charge on the basis that the Crown could not prove he knew the co-accused would fire the gun. The jury convicted him of murder after deliberating for two days, having been directed on felony murder (also known as constructive murder).
The offender was also to be sentenced for three additional armed robberies committed in the week before the market incident, to which he had separately pleaded guilty.
Legal Issues
- Whether the offender's conviction for murder rested on a finding that he foresaw the possibility of the gun being discharged, or that he foresaw the possibility of injury or death resulting from its discharge
- What level of objective culpability attached to the murder conviction, given the jury's apparent reasoning
- How to approach sentencing across five offences (one murder and four aggravated armed robberies), including the weight to be given to rehabilitation, the offender's background, and the appropriate non-parole period
- Whether special circumstances existed justifying a departure from the standard statutory ratio between the head sentence and the non-parole period
Decision
The court analysed the sequence of jury questions during deliberations and concluded that the jury convicted the offender of murder on the basis of felony murder. The jury's questions revealed concern about whether foresight of injury or death was required. After being directed that felony murder required only that the offender foresaw the possibility of the gun being discharged (not that he foresaw injury or death), the jury returned its verdict promptly. Mathews AJ was satisfied the conviction rested on that narrower basis, which significantly reduced the offender's objective culpability for the murder.
On objective seriousness, the court characterised the murder as sitting at a very low level of culpability. The offender did not fire the gun, did not direct the co-accused to fire it, and the jury's verdict was consistent with a finding that he did not foresee anyone being injured or killed. Nevertheless, the offence remained murder, and the four armed robberies, committed within a single week, were serious matters in their own right.
Turning to subjective factors, the court accepted that the offender had endured a genuinely difficult life, including physical and emotional abuse in childhood, immigration to a new country, and long-standing drug dependency that appeared to underlie his prior criminal history. His prior record, while not insignificant in terms of length, involved no very serious offences. His mother expressed willingness to support him on release, and the court was satisfied that prospects of rehabilitation were real, provided the offender could avoid substance abuse.
The court found that the unusual demands of rehabilitation in this case constituted special circumstances warranting a departure from the standard statutory proportion between the overall sentence and the non-parole period. An aggregate sentence was imposed across all five offences. The court also formally warned the offender of the operation of the Crimes (High Risk Offenders) Act 2006, which could potentially affect him at the end of his sentence.
Orders Made
- Aggregate term of imprisonment of 20 years imposed for all five offences
- Non-parole period of 14 years, commencing 12 October 2013 and expiring 11 October 2027
- Balance of term of 6 years, commencing 12 October 2027 and expiring 11 October 2033
- First eligible date for release on parole: 11 October 2027
Key Takeaways
- A conviction for felony (constructive) murder does not require proof that the offender foresaw that anyone would be injured or killed; it is sufficient that the offender foresaw the possibility of the weapon being discharged during or immediately after the commission of a qualifying offence.
- The Supreme Court treated the jury's deliberative questions as a reliable guide to the basis on which the verdict was reached, using that analysis to assess the offender's objective culpability for sentencing purposes.
- Where the basis of a murder conviction is felony murder and the offender had no direct role in the fatal act, objective culpability may be assessed as very low, even though the offence and its consequences remain grave.
- Rehabilitation may constitute a paramount sentencing consideration where the court is satisfied that an offender's criminal conduct is closely linked to substance abuse and that genuine prospects of reform exist upon release.
- Special circumstances justifying departure from the standard non-parole ratio can arise from rehabilitation considerations, not only from the structure of the sentence or the nature of the offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- JM v R [2014] NSWCCA 297
- Muldrock v R [2011] HCA 25; (2005) 228 CLR 357
- R v Jacobs and Mehajer (2004) 151 A Crim R 452