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26
Court of Criminal Appeal 10 December 2020

Droudis v R

[2020] NSWCCA 322

Also reported as (2020) 103 NSWLR 806
Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE WHETHER S 22A REQUIRES A TWO

Citation: Droudis v R [2020] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 10 December 2020
Judges: Bathurst CJ; Hoeben CJ at CL; Hamill J

Background

The appellant was convicted in November 2016 of the 2013 murder of a woman (referred to by the pseudonym Helen Lee), who was the former wife of Man Haron Monis. The appellant had been in a long-term relationship with Monis and, at his instigation, waited for the victim at an apartment used for child access visits, stabbed her 18 times, and set her body alight. The sentencing judge found that Monis planned the murder but was unwilling to carry it out himself, and that the appellant acted at his behest.

The sentencing judge found the crime fell very significantly above the mid-range of objective seriousness, and imposed a sentence of 44 years imprisonment with a non-parole period of 33 years. The sentencing judge acknowledged Monis's significant influence over the appellant but the appellant contended that the judge failed to properly account for the effect of Monis's death on her future risk and rehabilitation prospects.

The appellant also raised issues about the sentencing judge's application of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which deals with reductions in sentence for facilitating the administration of justice, and argued the sentence was manifestly excessive. Despite maintaining a plea of not guilty, the appellant had provided assistance at trial that limited the facts in issue.

  • Whether the sentencing judge erred in assessing the significance of Monis's death to the appellant's risk of re-offending and prospects of rehabilitation
  • Whether s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a two-stage sentencing approach or permits instinctive synthesis, and whether a judge must specify or quantify any resulting discount
  • Whether the original sentence of 44 years was manifestly excessive
  • The appropriate sentence upon re-sentencing, including the weight of comparable cases

Decision

Significance of Monis's death. The Court upheld the first ground of appeal. Although Monis's influence did not reduce the appellant's moral culpability or the gravity of the offence, the Court found that his death and the removal of his ongoing influence were relevant considerations when assessing personal deterrence, future dangerousness, and prospects of rehabilitation. The sentencing judge had not given sufficient weight to those matters. The Court also found nothing in the appellant's continued adherence to Islam that made future criminal conduct of this nature more likely.

Section 22A and the approach to quantifying discounts. The Court confirmed that s 22A does not impose a two-stage sentencing requirement. Matters falling under that provision can be addressed as part of the instinctive synthesis approach to sentencing, and the section does not legally require a judge to specify a percentage or mathematical discount. The Court nevertheless stated that where facilitation of the administration of justice has made a significant difference to the sentence, it is desirable to specify what the sentence would have been without that facilitation, in the interests of transparency and encouraging efficient conduct of trials.

Re-sentencing. In re-sentencing, the Court emphasised that the offence remained a very serious murder in which retribution and general deterrence played a significant role. The Court distinguished the present case from comparable decisions, noting the appellant was not the instigator of the crime and that her prospects of rehabilitation were reasonable. The Court applied a one-year reduction to reflect the facilitation of the administration of justice and arrived at a total head sentence of 35 years.

Orders Made

  • Leave to appeal granted
  • Original sentence quashed
  • In substitution, a sentence of 35 years imprisonment imposed, comprising a non-parole period of 26 years and 3 months commencing 22 December 2014 and expiring 21 March 2041, with a balance of term of 8 years and 9 months expiring 21 December 2049

Key Takeaways

  • The removal of a dominant, controlling co-offender through death is a relevant sentencing consideration when assessing personal deterrence, future dangerousness, and rehabilitation, even where that influence does not reduce the offender's moral culpability for the original offence.
  • Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a two-stage approach to sentencing; courts may address the facilitation discount as part of instinctive synthesis without being legally obliged to specify a mathematical reduction.
  • Where facilitation of the administration of justice has materially affected the sentence, the Court of Criminal Appeal confirmed it is nonetheless desirable for sentencing courts to identify the sentence that would have been imposed without it, to promote transparency and efficient trial conduct.
  • An offender's continued religious observance does not, without more, support an inference of elevated future risk of criminal conduct of the kind for which they were sentenced.
  • In assessing comparable cases on sentence, the Court confirmed that such cases may reveal sentencing patterns and possible ranges, but those ranges are not necessarily the correct range and must be applied with attention to the particular facts and subjective circumstances before the court.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 22A
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Criminal Code 1995 (Cth)
- Criminal Procedure Amendment (Pre-Trial Procedure) Act 2001 (NSW)

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Barrett v R [2020] NSWCCA 11
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- CMB v The Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Goodbun v R [2020] NSWCCA 77
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Droudis (No 14) [2016] NSWSC 1550
- R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64