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Supreme Court 16 February 2018

R v Petryk, Daniel

[2018] NSWSC 119

HomicideTheft & propertyFirearms & weapons
CRIME SENTENCE MURDER SENTENCE AFTER TRIAL HOME INVASION LIMITED SUBJECTIVE CASE

Citation: R v Petryk, Daniel [2018] NSWSC 119
Court: Supreme Court of New South Wales
Date: 16 February 2018
Judge: Wilson J

Background

In the early hours of 7 March 2015, a man named Robert Parry was shot and killed at his home in Wickham, New South Wales. Three intruders had entered the premises intending to steal drugs or money. The offender, who had armed himself with a loaded shortened .22 calibre rifle obtained from an acquaintance, shot Mr Parry at close range when Mr Parry disturbed the group.

The offender was tried before a jury and, on 23 October 2017, was found guilty of both murder and robbery whilst armed with a dangerous weapon. He came before the Supreme Court for sentencing on 16 February 2018.

The sentencing judge was required to determine the facts of the offences consistent with the jury's verdict, to assess the weight of witness evidence from two accomplices who had received benefits in exchange for testifying, and to fix an appropriate sentence.

  • What facts could be found proved to the criminal standard, consistently with the jury's verdict, where the Crown relied substantially on accomplice witnesses who had received benefits for their testimony?
  • On which basis (principal liability or constructive murder) had the offender's guilt been established, and what were the relevant facts for sentencing?
  • What was the appropriate aggregate sentence, having regard to the gravity of the offences, the offender's limited subjective case, and the standard non-parole period?
  • Whether, and to what degree, the present sentences should run concurrently with an earlier unrelated sentence the offender had been serving.

Decision

The court undertook careful scrutiny of the two key accomplice witnesses, Phoebe Bronner and Jeremy Gorman, each of whom had received a benefit in exchange for their trial testimony. Wilson J accepted that Ms Bronner may have sought to minimise the role of her then-partner in the events, but found no real basis to conclude she had exaggerated the offender's involvement. Her evidence was broadly consistent over time and was supported by independent evidence.

The Crown had advanced the murder charge on two alternative bases: direct principal liability (requiring a deliberate discharge with intent to cause at least grievous bodily harm), and constructive murder (requiring voluntary discharge of the weapon during an armed robbery). The court was unable to find, to the criminal standard, that the offender had loaded and test-fired the rifle during a stop on the way to the premises. However, the court was satisfied that the offender was armed with the gun at the time of the robbery and discharged it voluntarily, causing Mr Parry's death.

On the question of totality and commencement date, the court declined to backdate the sentences to run concurrently with an earlier, unrelated sentence the offender had been serving until April 2016. Wilson J found that the earlier sentence was very modest, that there was no commonality between the offences, and that backdating would effectively reduce an already lenient earlier sentence in a way that would fail to reflect the gravity of the present crimes.

The court found the murder offence wholly subsumed the criminality of the armed robbery, and imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • The offender was convicted of murder and robbery whilst armed with a dangerous weapon.
  • An aggregate sentence of 26 years imprisonment was imposed, commencing 3 April 2016 and expiring 2 April 2042.
  • A non-parole period of 19 years and 6 months was specified, expiring 2 October 2035.
  • The indicative separate sentences were: murder, 26 years; armed robbery, 8 years.
  • The offender was advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

Key Takeaways

  • Where a Crown case for murder is advanced on alternative bases of principal liability and constructive murder, the sentencing court must determine which facts are proved to the criminal standard before fixing sentence, and adverse facts must be established beyond reasonable doubt (applying The Queen v Olbrich [1999] HCA 54).
  • Accomplice evidence from witnesses who received benefits for testifying requires careful scrutiny, but may still be accepted where it is internally consistent and supported by independent evidence.
  • Constructive murder under the Crimes Act 1900 (NSW) can be established where an offender voluntarily discharges a firearm causing death during the commission of an armed robbery, even where direct intent to kill or cause grievous bodily harm is not proved to the criminal standard.
  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is appropriate where the criminality of one offence wholly subsumes that of a related foundational offence.
  • Concurrency between a new sentence and an earlier, unrelated sentence is not required by the totality principle where the earlier sentence was very modest and there is no commonality between the respective offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Drug Court Act 1998 (NSW)

Cases
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Cayhadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Imbornone v R [2017] NSWCCA 144
- R v Fidow [2004] NSWCCA 172
- R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462
- R v Mills (unreported, NSWCCA, 3 April 1995, Cole JA)
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353