Citation: R v Spiteri-Ahern [2018] NSWSC 1072
Court: Supreme Court of New South Wales
Date: 13 July 2018
Judge: Rothman J
Background
Following a judge-alone trial, the offender was convicted on 21 December 2017 of the murder of Raymond Pasnin, who was shot and killed at close to midnight on 30 October 2013 at Pendle Hill, New South Wales. The shooting was carried out by a third party, Daniel Haile, who was paid by the offender to carry out the assault. The offender had previously been in a relationship with the deceased.
The offender arranged, through an intermediary, for the deceased to be at a particular location where he was then shot. At least $4,000 was paid to the shooter. The deceased was killed in sight of his partner and his mother, at his mother's residence.
The motive was not entirely clear from the evidence, but appeared to relate to one or more grievances arising from the offender's prior relationship with the deceased, including a possible prior stabbing, the deceased's response to a pregnancy, and alleged deception by the deceased to induce the offender to withdraw prior criminal allegations against him. The sentencing hearing was delayed until 6 July 2018 while certain evidence was gathered.
Legal Issues
- What was the objective seriousness of the offence, given the organised nature of the assault and the fact that the Crown proved only an intention to cause grievous bodily harm rather than an intention to kill?
- What sentence, including head sentence and non-parole period, was appropriate having regard to the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999?
- Whether "special circumstances" existed justifying a departure from the standard ratio between the non-parole period and the balance of term.
- How prior periods of custody, including imprisonment for unrelated dishonesty offences, should be taken into account in determining commencement date and totality.
Decision
Rothman J assessed the objective seriousness of the offending as above the mid-range for murder. The execution-style nature of the killing, its premeditation, its organised character over a significant period, and the vulnerability of the circumstances in which the deceased was killed all contributed to this assessment. The offending involved a contracted assault with the intention of inflicting grievous bodily harm and a distinct possibility that death could result.
However, the court was careful to limit the assessment of objective seriousness to the offender's own conduct and state of mind. Because the Crown had established only an intention to cause grievous bodily harm, rather than an intention to kill, the offending could not be characterised as a true "contract killing" in the legal sense. The intent to kill held by the shooter, Haile, could not be attributed to the offender. This distinction affected the placement of the offence within the overall range of murder.
The court applied the "instinctive synthesis" approach, weighing the objective circumstances of the offending against the subjective circumstances of the offender. It identified punishment, public deterrence, protection of society, and rehabilitation as relevant sentencing considerations, with the first three looming particularly large given the gravity of the offence. Special circumstances were found, given the need for a longer parole period to support rehabilitation.
On totality, the court took into account the period of custody served in connection with unrelated dishonesty offences (from 18 November 2015 to 17 September 2017) and a further period of approximately five months' earlier custody. The commencement date of the sentence was backdated accordingly to 22 June 2015.
Orders Made
- The offender was convicted of the murder of Raymond Pasnin on 30 October 2013 at Pendle Hill, New South Wales.
- Head sentence of 30 years' imprisonment imposed.
- Non-parole period of 18 years' imprisonment, commencing 22 June 2015 and concluding 21 June 2033.
- Balance of term of 12 years, concluding 21 June 2045.
- First eligible for parole on 21 June 2033.
Key Takeaways
- A conviction for murder does not automatically warrant a finding that the offender intended to kill; where the Crown proves only an intention to cause grievous bodily harm, the objective seriousness of the offence must be assessed on that basis, and the shooter's intent to kill cannot be attributed to the organiser.
- The Supreme Court confirmed that the "instinctive synthesis" method requires balancing objective features of the offence with subjective circumstances of the offender to arrive at a sentence that addresses the often conflicting purposes set out in the Crimes (Sentencing Procedure) Act 1999.
- An organised, premeditated assault arranged over a significant period of time, involving payment to a third party to inflict grievous bodily harm with an obvious risk of death, placed this murder above the mid-range of objective seriousness, even absent a proven intention to kill.
- Special circumstances justifying a longer parole period were found where rehabilitation was identified as a meaningful sentencing consideration, altering the standard non-parole period to head sentence ratio.
- Where an offender has served custodial time for unrelated offences that overlapped with the period relevant to the murder charge, principles of totality require that earlier imprisonment to be taken into account in fixing the commencement date of the murder sentence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Evidence Act 1995 (NSW), s 4(2)(a)
Cases
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820 (the verdict judgment)
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14