AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 30 August 2017

Roff v R

[2017] NSWCCA 208

Homicide
CRIME APPEAL AGAINST SENTENCE MURDER WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED AND OFFENDER RESENTENCED

Citation: Roff v R [2017] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 30 August 2017
Judges: Leeming JA; Button J; Hamill J

Background

The appellant was convicted by a Supreme Court jury in 2016 of the murder of a man in Dubbo on 29 July 2013. At the time of sentencing, the appellant was 54 years old. The sentencing judge described the offence as an extraordinary departure from an otherwise blameless character, noting the appellant had been a devoted husband to a severely ill wife for over 30 years before her death from cancer in 2012.

The murder arose from the appellant's intense infatuation with the deceased's partner. Following his wife's death, the appellant became deeply attached to a younger woman who, the sentencing judge found, had actively pursued and encouraged that relationship. The sentencing judge found the appellant's descent to murder was directly attributable to that infatuation.

At first instance, the appellant was sentenced to a head sentence of 32 years with a non-parole period of 24 years, commencing 9 August 2013. The appellant sought leave to appeal, arguing the sentence was flawed on three bases.

  • Whether the sentencing judge failed to give proper weight to the appellant's subjective case in fixing both the head sentence and the non-parole period
  • Whether the sentencing judge impermissibly treated the absence of remorse or acknowledgement of guilt as an aggravating factor, thereby penalising the appellant for conducting his defence
  • Whether the head sentence of 32 years was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal found all three grounds of appeal were made out. On the first ground, the court found the sentencing judge did not adequately reflect the appellant's powerful subjective case in the ultimate sentence, despite having recited those matters in careful detail. The appellant's long history of good character, his decades of devoted support for a chronically ill wife, his lack of any prior criminality, and the exceptional nature of the offence relative to his character were all weighty mitigating factors.

On the second ground, the court found the sentencing judge had, in effect, treated the appellant's absence of remorse and maintenance of his not guilty plea as factors that extended the non-parole period beyond what the objective circumstances alone warranted. This was an error. The absence of remorse is not, of itself, an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the non-parole period under s 54B is to be set by reference to objective factors. Penalising an offender for exercising the right to contest the charge is impermissible.

On manifest excess, the court held that a head sentence of 32 years was outside the range properly open on the facts. The court noted the sentencing judge's own findings: the murder was described as a terrible exception to everything about the appellant's character; his motivation was described as arising from sincere and decent feelings that had become profoundly misdirected; and the overall picture was of an individual whose offending stood in stark contrast to an otherwise admirable life. These factors, taken together, required a substantially lower sentence.

The Court resentenced the appellant to a total term of 25 years, with a non-parole period of 18 years and 9 months commencing 9 August 2013.

Orders Made

  • Time for filing the notice of appeal extended to 19 June 2017
  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence of 32 years (non-parole period of 24 years) quashed
  • Appellant resentenced to imprisonment for a non-parole period of 18 years and 9 months commencing 9 August 2013 and expiring 8 May 2032, with a balance of term of 6 years and 3 months commencing 9 May 2032 and expiring 8 August 2038
  • Appellant eligible for parole from 8 May 2032
  • Appellant notified that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to him and to the relevant offending

Key Takeaways

  • Absence of remorse is not a standalone aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), and a sentencing court cannot use it to extend a non-parole period beyond what the objective circumstances of the offence warrant.
  • Under s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW), the non-parole period must be determined by reference to objective factors; linking a longer non-parole period to an offender's failure to acknowledge guilt risks penalising the exercise of a legitimate right to contest charges.
  • Where a sentencing judge recites powerful subjective mitigating factors but the final sentence does not adequately reflect them, the Court of Criminal Appeal may find error and intervene, even where the original reasons appear careful and detailed.
  • The Court of Criminal Appeal confirmed that a sentence can be manifestly excessive where the sentencing judge's own factual findings, including findings of exceptional good character and a wholly aberrant offence, are not sufficiently translated into the quantum of the sentence.
  • In allowing a sentence appeal on grounds including manifest excess, the appellate court proceeds directly to resentencing rather than remitting the matter.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B, 61
- Criminal Appeal Act 1912 (NSW), s 10
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hadchiti v R [2016] NSWCCA 63
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Riggio v R [2015] NSWCCA 223
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74