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Court of Criminal Appeal 29 May 2020

TB v R

[2020] NSWCCA 108

Assault & violenceHomicideTheft & property
CRIMINAL LAW SENTENCE APPEAL TWO HOME INVASIONS INVOLVED NO ERROR ESTABLISHED APPEAL DISMISSED.

Citation: TB v R [2020] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 29 May 2020
Judge(s): Bathurst CJ; Hoeben CJ at CL (principal judgment); Harrison J

Background

The applicant, a man aged 22 at the time of the offences, participated in two separate home invasions in rural New South Wales in 2014 while heavily addicted to methamphetamine. The first invasion, at a property in Medway on 28 April 2014, involved the applicant and two co-offenders breaking into a family home, detaining four occupants with rope and duct tape, and seriously assaulting the male householder with a pick handle. The second invasion, at Badgerys Creek on 30 May 2014, resulted in the murder of one victim and serious injury to another.

The applicant was sentenced in the Supreme Court in May 2017 on six counts: one count of murder, two counts of specially aggravated break, enter and steal (each involving intentional infliction of grievous bodily harm), and three counts of aggravated detention for advantage. His Honour R A Hulme J imposed an aggregate sentence of 38 years' imprisonment with a non-parole period of 28 years and 6 months. The applicant's basis of liability across all counts was participation in a joint criminal enterprise.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the aggregate sentence was manifestly excessive and that the sentencing judge erred in his approach to special circumstances. A suppression order prohibiting publication of the applicant's identity was also in place.

  • Whether the indicative sentence for murder was manifestly excessive, and whether any such error produced a manifestly excessive aggregate sentence
  • Whether the sentencing judge erred in his approach to the question of special circumstances, and in failing to find that special circumstances existed warranting a variation of the standard non-parole period ratio

Decision

On the first ground, the Court found no error in the indicative sentence for murder. The sentencing judge had applied discounts of 15 per cent to the Badgerys Creek offences (reflecting a late guilty plea and the applicant's offer to give evidence against co-offenders) and 35 per cent to the Medway offences (reflecting earlier guilty pleas and the same cooperation discount). The starting point of 35 years for murder, reduced to an indicative sentence of 30 years, was assessed against the objective gravity of the offending and the applicable subjective circumstances. The Court concluded that the indicative sentence was within the range open to the sentencing judge.

On the second ground, the applicant contended that factors including remorse, contrition, prospects of rehabilitation, and the notional accumulation of sentences in the aggregate ought to have led the judge to find special circumstances justifying a reduction in the non-parole period ratio. The Court rejected this argument. Hoeben CJ at CL observed that contrition, remorse, and rehabilitation had been specifically addressed by the sentencing judge in the sentence judgment, and the question of notional accumulation had not been raised before his Honour at all. The judge's finding on special circumstances demonstrated that he had taken into account the minimum period of incarceration necessary to reflect the seriousness of the offending and the applicant's subjective case.

The Court also noted that the sentencing judge's observation that any greater discount would render sentences "unreasonably disproportionate" to the nature and circumstances of the offences showed he had squarely addressed the proportionality question. No error was established in the approach to special circumstances. All three judges agreed the appeal should be dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the indicative sentence for murder where the sentencing judge correctly applied discounts for late guilty pleas and cooperation with authorities, and the resulting sentence fell within the range open on the facts.
  • In dismissing the appeal, the Court confirmed that a sentencing judge is not required to revisit matters such as remorse, contrition, and rehabilitation under the rubric of special circumstances when those matters have already been specifically addressed elsewhere in the sentencing judgment.
  • Where a ground of appeal concerning the sentencing approach (here, notional accumulation in an aggregate sentence) was never raised before the sentencing court, the appellate court will not treat the failure to address it as error.
  • The Court of Criminal Appeal confirmed that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) still requires the sentencing court to fix indicative sentences, and errors in those indicative sentences may ground a challenge to the aggregate, but no such error was made out here.
  • A finding that any greater discount would produce sentences disproportionate to the seriousness of the offending was treated as evidence that the sentencing judge had correctly applied the principle of minimum necessary incarceration, not as a freestanding error.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Crimes Act 1900 (NSW), ss 18, 86(2)(a), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Beale v R [2015] NSWCCA 120
- Book v R [2018] NSWCCA 58
- Borg v R [2019] NSWCCA 129
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Hogarth v The Queen [2012] VSCA 302; 37 VR 658
- JM v R [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mulato v Regina [2006] NSWCCA 282
- Obeid v R [2017] NSWCCA 221
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199
- Regina v AA, AC, SS, Tatchell and Wildsmith [2010] NSWSC 495