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Supreme Court 8 November 2018

R v Poynton (No 4)

[2018] NSWSC 1693

Homicide
CRIMINAL LAW SENTENCE MURDER OF TWO VICTIMS GUILTY PLEAS ENTERED OBJECTIVE SERIOUSNESS OF OFFENCE OFFENDER’S MORAL CULPABILITY

Citation: R v Poynton (No 4) [2018] NSWSC 1693
Court: Supreme Court of New South Wales
Date: 8 November 2018
Judge: Schmidt J

Background

In the early hours of 12 November 2014, a then 21-year-old man shot and killed two people on a country road. He had arranged to meet the male victim, shot him at close range through a car window, and then pursued and shot the female victim as she attempted to flee. After she turned and lunged at him with a hunting knife, he struck her with the shotgun, reloaded, and shot her again. He was arrested two days later and made admissions to police.

The proceedings that followed were protracted. In May 2016, Campbell J found the offender unfit to stand trial due to mental illness. Following treatment and review by the Mental Health Review Tribunal, Wilson J found him fit to be tried in November 2016. He initially entered pleas of not guilty on the basis of mental illness, and in 2017 Johnson J refused a judge-alone trial application.

In August 2017, the offender offered to plead guilty to manslaughter on the basis of substantial impairment, but the Crown declined. Twelve days before the scheduled trial in June 2018, he entered pleas of guilty to both murders. This judgment deals with sentencing for those two offences.

  • Whether life imprisonment was warranted for either murder under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How the offender's long history of severe mental illness affected his moral culpability and the weight to be given to general deterrence
  • What discount, if any, applied for the late guilty pleas given the history of fitness proceedings and exploration of a mental illness defence
  • How the principle of totality should apply when imposing an aggregate sentence for two murders committed in a single course of conduct
  • Whether special circumstances existed to justify departing from the statutory one-third ratio between the non-parole period and the balance of term

Decision

Schmidt J accepted the parties' common position that life imprisonment was not warranted. Although both murders were undoubtedly serious, the evidence did not establish the extreme level of culpability required under s 61(1) to justify that maximum penalty. The standard non-parole period of 20 years for a mid-range murder, together with the maximum penalty, were treated as guideposts in the sentencing exercise, consistent with Muldrock v The Queen.

The offender's severe and longstanding mental illness was a significant mitigating factor going to moral culpability, in accordance with the High Court's approach in Bugmy v The Queen and Munda v Western Australia. That same mental illness also reduced the weight properly given to general deterrence, as recognised in Muldrock.

On the question of the guilty plea discount, Schmidt J applied the reasoning from Haines v R, where the Court of Criminal Appeal held that a plea entered as soon as reasonably practicable once a mental illness defence was no longer viable entitled the offender to a full 25% discount. The same logic applied here, given the history of fitness proceedings and the rejected offers to plead to manslaughter. Schmidt J was satisfied the offender entered his pleas as soon as was reasonably possible in the circumstances.

Applying the principle of totality, Schmidt J arrived at an aggregate sentence rather than simply accumulating the indicative sentences for each murder. The indicative sentence for the Edwards murder (after the 25% discount) was 13 years and 6 months, and for the Joyce murder, 19 years and 6 months. Accounting for totality, the aggregate sentence was set at 24 years and 9 months, with a non-parole period of 18 years and 6 months. No finding of special circumstances was made.

Orders Made

  • The offender was convicted of the murders of both victims.
  • An aggregate sentence of imprisonment of 24 years and 9 months was imposed, commencing 14 November 2014.
  • Non-parole period of 18 years and 6 months, expiring 13 May 2033.
  • Total sentence expiring 13 August 2039.

Key Takeaways

  • The Supreme Court confirmed that life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act is reserved for offences of extreme culpability, and the threshold was not met here despite the double murder and the manner in which it was carried out.
  • Severe and longstanding mental illness operates both as a mitigating factor going to moral culpability and as a basis for reducing the weight given to general deterrence in sentencing.
  • Under Haines v R, a full 25% guilty plea discount may be available even where the plea is entered late, provided the delay is adequately explained by the history of fitness proceedings and the offender's exploration of a mental illness defence.
  • The principle of totality requires that an aggregate sentence reflect the overall criminality of all offending taken together, rather than mechanically accumulating individual sentences, even where multiple serious offences are involved.
  • Indicative sentences for each offence are a necessary step in the aggregate sentencing process, enabling transparency in how the final sentence was constructed and how the discount for guilty pleas was applied.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 44(2), 54A, 54B, 61(1)
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Haines v R [2016] NSWCCA 90
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v Western Australia (2013) 249 CLR 600
- Postiglione v The Queen (1997) 189 CLR 295
- Power v The Queen (1974) 131 CLR 623
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Knight (2005) 155 A Crim R 252
- R v MAK (2006) 167 A Crim R 159
- R v Poynton [2016] NSWSC 615; (No 2) [2016] NSWSC 1621; (No 3) [2017] NSWSC 1772
- R v Scott [2005] NSWCCA 152
- R v Thomson; R v Houlton (2000) 49 NSWLR 383