Citation: R v Rowe [2019] NSWSC 1592
Court: Supreme Court of New South Wales
Date: 11 November 2019
Judge(s): Walton J
Background
On 25 March 2018 in Leeton, NSW, the offender used his dual-cab utility to strike the deceased from behind while the deceased was riding a bicycle. The offender then drove over the deceased four times while he lay on the roadway, killing him. The deceased was 33 years old at the time of his death.
The offender was arrested the following day and remained in custody on a bail-refused basis from that point. He pleaded guilty to murder on 13 March 2019 in the Griffith Local Court before the matter was committed for sentencing in the Supreme Court.
The sentencing proceedings required Walton J to assess the objective seriousness of the offending, weigh the offender's subjective circumstances, and determine an appropriate finite term of imprisonment. The Crown did not press for a life sentence.
Legal Issues
- Whether the offence warranted the maximum penalty of life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- How to assess the objective seriousness of the offending, including the use of a motor vehicle as a murder weapon
- The weight to be given to mitigating factors, including the guilty plea, remorse, mental health considerations, and the offender's criminal history
- Whether special circumstances existed to justify departing from the standard one-third ratio between the non-parole period and the balance of term
- Whether the court should exercise its discretion under s 206A(5) of the Road Transport Act 2013 (NSW) to impose a licence disqualification period
Decision
Walton J declined to impose a life sentence. The Crown did not seek to establish that the offence fell within the "worst case" category under s 61(1) of the Sentencing Act, which requires pointing to features of very great heinousness and the absence of mitigating facts going to the seriousness of the crime (as distinct from subjective features). The judge found that the guilty plea, demonstrated remorse, factors affecting moral culpability, and the offender's relatively minor prior criminal history collectively justified a finite term.
The court applied the sentencing principles from Markarian and Muldrock, conducting an instinctive synthesis across all relevant objective and subjective factors. The objective seriousness of the offending was significant: the murder was committed with an intention to kill, with some degree of premeditation and planning, and the motor vehicle was deliberately deployed as a lethal weapon. The court drew on established authority that when a motor vehicle is used not merely in dangerous driving but as the instrument of a deliberate killing, the relevant sentencing principles are applied with even greater force.
The court identified special circumstances warranting departure from the standard one-third ratio between the balance of term and the non-parole period, resulting in a non-parole period of 17 years and 6 months and a balance of term of 5 years and 6 months. Walton J also exercised the discretion under s 206A(5) of the Road Transport Act to impose a licence disqualification period of 12 months upon any parole release, expressly noting that this was a separate exercise of discretion from the automatic disqualification provisions.
Orders Made
- The offender was convicted of the murder of the deceased.
- Sentenced to imprisonment with a non-parole period of 17 years and 6 months, commencing 26 March 2018 and expiring 25 September 2035.
- Balance of term of 5 years and 6 months, commencing 26 September 2035 and expiring 25 March 2041.
- Eligibility for parole from 25 September 2035.
- Licence disqualification of 12 months upon release on parole, pursuant to s 206A(5) of the Road Transport Act 2013 (NSW).
Key Takeaways
- A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires the Crown to establish features of very great heinousness and an absence of facts mitigating the objective seriousness of the crime; absent that threshold, a finite term is appropriate even for serious murder offences.
- Where a motor vehicle is used as the deliberate instrument of murder, the sentencing court applies established dangerous-driving-causing-death principles with considerably greater force, reflecting the heightened criminality involved.
- Both the maximum penalty and the standard non-parole period of 20 years for murder serve as reference points in the instinctive synthesis required by Markarian and Muldrock, rather than as mechanical starting points.
- A guilty plea, genuine remorse, and factors bearing on moral culpability (including mental health considerations) remain relevant mitigating factors in murder sentencing, capable of justifying departure from the standard non-parole period.
- Under s 206A(5) of the Road Transport Act 2013, the court retains a separate discretion to impose a licence disqualification period distinct from, and potentially shorter than, the automatic disqualification that otherwise applies by operation of that Act.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 44(2), 54A, 54B, 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Road Transport Act 2013 (NSW), s 206A
Key Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Cheung v R (2001) 209 CLR 1; [2001] HCA 67
- Isaacs v R (1997) 41 NSWLR 374
- R v Murnin (NSWCCA, 16 August 1985, unreported)
- R v Hall [2001] NSWCCA 202
- Charbaji v R [2019] NSWCCA 28
- McDowall v R [2019] NSWCCA 29