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Supreme Court 29 June 2018

R v Gatt (No 11)

[2018] NSWSC 991

HomicideDrugsFirearms & weapons
CRIMINAL LAW SENTENCE MURDER OBJECTIVE SERIOUSNESS OF OFFENCE OFFENDER’S MORAL CULPABILITY VICTIM IMPACT STATEMENTS

Citation: R v Gatt (No 11) [2018] NSWSC 991
Court: Supreme Court of NSW
Date: 29 June 2018
Judge: Schmidt J

Background

Following a defended jury trial, the offender was convicted on 1 May 2018 of the murder of an 18-year-old victim at a car park in Bexley on 29 July 2013. The victim was shot twice while sitting in the back seat of a car, fled the vehicle, and died in a nearby road. The offender and his co-offender, who had both approached the car, were involved together in a drug dealing business at the time.

The Crown advanced its case at trial on two alternative bases: that the offender personally fired the fatal shots, or that he was at least a participant in the murder through joint criminal enterprise with his co-offender. The jury's verdict established involvement on at least the joint enterprise basis.

The offender was already serving a sentence imposed in July 2015 by the District Court for separate drug supply, firearms, and proceeds of crime offences committed in the same year. This made the application of the totality principle central to the sentencing exercise.

  • On what factual basis should the offender be sentenced, given the Crown's alternative cases at trial (shooter versus joint criminal enterprise participant)?
  • What is the objective seriousness of the offence?
  • What is the offender's moral culpability?
  • How should the parity principle apply, given the sentence imposed on the co-offender?
  • How should the totality principle apply, given the offender's existing sentence for unrelated offences?
  • Whether any discount on sentence was warranted

Decision

Schmidt J identified the sentencing task as requiring an instinctive synthesis of all relevant factors, consistent with Markarian v The Queen (2005) 228 CLR 357. The purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period of 20 years for murder under s 54A, and the maximum penalty of life imprisonment all required consideration. The Crown did not seek a life sentence under s 61(1), and her Honour accepted that the offence did not fall within that extreme category.

The Crown's alternative cases at trial meant the court had to determine the factual basis for sentence carefully. The jury's verdict established beyond reasonable doubt that the offender was at minimum a joint criminal enterprise participant in what the court characterised as an execution. The circumstances, including the premeditated approach to the victim's car, the number of shots fired, and the disposal of the weapon, bore significantly on both objective seriousness and moral culpability.

The parity principle required the court to account for the co-offender's sentence to avoid unjustifiable disparity, consistent with Green v The Queen; Quinn v The Queen (2011) 244 CLR 462. Because the offender was already serving a separate sentence, the totality principle under Mill v The Queen (1988) 166 CLR 59 also required that the combined effect of all sentences not be disproportionate to the totality of the offending. These two principles, as noted in Postiglione v The Queen (1997) 189 CLR 295, are related and must be applied together.

The court found no basis for any discount on the sentence. Her Honour also noted the operation of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to murder as a serious violence offence and permits the State to later apply for extended supervision or continuing detention orders at the conclusion of the sentence.

Orders Made

  • The offender was convicted of the murder of the victim.
  • Sentenced to a non-parole period of 21 years, commencing 1 February 2019 and expiring 31 January 2040.
  • Balance of term set at 7 years, expiring 31 January 2047.
  • Total head sentence: 28 years imprisonment.
  • No discount was applied to the sentence.

Key Takeaways

  • Where the Crown advances alternative cases at trial (personal perpetration versus joint criminal enterprise), the sentencing court must carefully identify the factual basis on which the offender is sentenced, consistent with R v Olbrich (1999) 199 CLR 270.
  • The standard non-parole period of 20 years for murder functions as a reference point for the midrange of objective seriousness, but both it and the maximum penalty must be weighed as part of the instinctive synthesis of all relevant factors per Muldrock v The Queen (2011) 244 CLR 120.
  • A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is reserved for cases of extreme culpability and will not be imposed where the Crown does not seek it and the evidence does not establish that threshold.
  • Parity and totality are related principles that must be applied together when an offender is being sentenced for a serious offence while already serving a sentence for separate matters, as confirmed in Postiglione v The Queen.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) applies to murder convictions and preserves the State's ability to apply for extended supervision or continuing detention orders at the end of the sentence, a matter the sentencing court noted without it forming part of the sentence itself.

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, 44(2), 54A, 54B, 61(1)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW)

Cases
- Filippou v The Queen (2015) 256 CLR 47
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- 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 Dodd (1991) 57 A Crim R 349
- R v Joseph Gatt (District Court (NSW), Yehia DCJ, 10 July 2015, unrep)
- R v Lewis [2001] NSWCCA 448
- R v KM [2004] NSWCCA 65
- R v Knight (2005) 155 A Crim R 252
- R v MAK (2006) 167 A Crim R 159
- R v Olbrich (1999) 199 CLR 270
- R v Scott [2005] NSWCCA 152
- R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764
- Veen v The Queen (No 2) (1988) 164 CLR 465