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Supreme Court 12 October 2017

R v Rolfe

[2017] NSWSC 1393

HomicideFirearms & weapons
CRIMINAL LAW SENTENCING MURDER JOINT CRIMINAL ENTERPRISE PARITY WITH SHOOTER DISCOUNT AWARDED

Citation: R v Rolfe [2017] NSWSC 1393
Court: Supreme Court of New South Wales
Date: 12 October 2017
Judge(s): Rothman J

Background

The offender, a member of the Penrith Chapter of the Rebels Outlaw Motorcycle Gang, pleaded guilty to the murder of a motorcycle workshop owner on the basis of joint criminal enterprise. The victim had been targeted after he sought the return of a custom motorcycle seized by senior Rebels members in connection with a debt dispute involving a third party. The offender organised vehicles for a series of trips to the Central Coast to carry out what he understood would involve grievous bodily harm, and was present on the night the victim was fatally shot by his co-offender.

The co-offender, who was the Sergeant-at-Arms of the chapter and the actual shooter, was sentenced separately. The offender's sentencing was delayed until after the co-offender's trial, in which the offender gave evidence for the prosecution. He was also sentenced for a separate charge of possessing an unlicensed pistol, with a Form 1 offence for possession of ammunition taken into account.

The plea of guilty was entered on or just before the trial was due to commence, meaning it did not attract the benefit available for an early plea. However, the offender's assistance to authorities was treated as a significant mitigating factor.

  • What was the appropriate starting sentence for murder by joint criminal enterprise, having regard to objective seriousness and parity with the co-offender who was the actual shooter?
  • What discount should be applied for the combination of a guilty plea and assistance to authorities of exceptional nature?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence?
  • How the totality principle applied to the concurrent sentence for the firearm offence and the Form 1 ammunition matter?

Decision

Rothman J assessed the murder as serious within its range, taking into account that the offender participated in a planned, gang-directed attack, organised transport across multiple trips, and was present at the killing. The offender was not the shooter, and his role was described as subordinate to the co-offender, who was a senior figure in the chapter. The court accepted a starting point of 28 years' imprisonment as appropriate for the murder, reflecting parity with the co-offender's sentence while acknowledging the offender's lesser role.

The court applied a discount of slightly more than 50 per cent to reflect the combined weight of the guilty plea and what was described as assistance to authorities of an exceptional nature. The offender had given evidence against his co-offender in a bikie murder trial, a context in which such cooperation carries particular personal risk. Special circumstances were also found, resulting in a longer parole period than would ordinarily apply.

On the firearm offence, Rothman J characterised possession of the pistol as mid-range or slightly below mid-range in seriousness. The court accepted that the firearm was likely kept in response to threats connected to the murder matter and the prospect of the offender giving evidence. The Form 1 ammunition offence added to the overall criminality but did not materially alter the total sentence under the totality principle.

Orders Made

  • The offender was convicted of the murder of Laurence Starling on 24 July 2014.
  • For murder: non-parole period of 8 years and 6 months, commencing 23 April 2015 and expiring 22 October 2023, with a balance of term of 4 years and 6 months, expiring 22 April 2028.
  • The offender was convicted of possessing an unlicensed pistol on 24 October 2014.
  • For the firearm offence (incorporating the Form 1 ammunition matter): non-parole period of 5 years and 6 months, commencing 22 June 2018 and expiring 21 December 2023, with a balance of term of 1 year and 10 months, expiring 21 October 2025.
  • First eligible for parole on 21 December 2023.

Key Takeaways

  • A discount of slightly more than 50 per cent was applied to reflect the combined effect of a guilty plea and assistance to authorities described as exceptional in nature, even where the plea was not entered at the earliest opportunity.
  • Parity with a co-offender remains a central consideration in murder sentencing where both parties are sentenced in related proceedings; the court anchored the starting point to the co-offender's sentence while adjusting for the difference in role.
  • Where an offender participates in a joint criminal enterprise but is not the shooter, the court will still treat the offence as serious, though the relative culpability of each participant informs the final sentence.
  • The totality principle operated to ensure the cumulative effect of the murder and firearm sentences reflected the overall criminality without producing a crushing or disproportionate outcome.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999, the purposes of sentencing in serious crimes such as murder include punishment, public deterrence, retribution, protection of society, and rehabilitation, all of which the court is required to synthesise rather than apply in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465