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Supreme Court 20 August 2021

R v Dion

[2021] NSWSC 1043

HomicideDrugsTheft & property
SENTENCING MURDER CONVICTION FOLLOWING TRIAL OFFENDER BASHED VICTIM AND STOLE DRUGS CONTEMPTUOUS DISPOSAL OF BODY FOCUSSED DEFENCE

Citation: R v Dion [2021] NSWSC 1043
Court: Supreme Court of New South Wales
Date: 20 August 2021
Judge(s): Beech-Jones J

Background

The offender, Alex Dion, was convicted by jury on 18 March 2021 of murdering Wachira Phetmang, a 33-year-old man who sold small quantities of drugs including ice at a retail level. The killing occurred on or around 25 May 2018 at an underground car wash area in a residential block in Belmore, New South Wales. Mr Phetmang had attended the premises after being lured there by the offender, who had obtained his contact details through a mutual associate.

The Crown established that the offender had planned to steal drugs from the victim, though the murder itself was found not to have been premeditated. After the killing, the offender hid the body in the car wash area of the complex for approximately two days before transporting it to bushland near Homebush Bay Drive at Sydney Olympic Park. The body was found wrapped in plastic sheeting, bound with string, and gagged with a t-shirt.

The sentence hearing proceeded on 9 August 2021, with the delay attributed to the listing of another matter and the obtaining of reports. Beech-Jones J confirmed that no part of the delay was the fault of the offender.

  • Whether a life sentence was appropriate given the circumstances of the offence
  • Where on the spectrum of culpability this murder fell, having regard to the standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999
  • What mitigating factors, if any, applied to the offender's circumstances
  • What the appropriate head sentence and non-parole period should be

Decision

Beech-Jones J determined that a life sentence was not warranted. The Crown did not submit that one should be imposed, and the court was not satisfied that the level of culpability was so extreme as to require it under s 61(1) of the Crimes (Sentencing Procedure) Act 1999.

Applying the two-guidepost approach required by Muldrock v R, the court identified all relevant factors before settling on an appropriate sentence. The offence was assessed as falling in the mid-range of objective seriousness for murder. Key features elevating seriousness included the planned nature of the robbery, the brutal bashing of a victim who was of slight build, and the contemptuous manner in which the body was disposed of, including the use of gag, binding, and plastic sheeting. The court found the murder was not premeditated, which distinguished it from the most serious category of killings.

The court acknowledged several mitigating factors argued on the offender's behalf, though the judgment notes that some were made out and some were not, and that those which were established had to be weighed against the gravity of a murder conviction. The offender's case at trial involved what the court described as a "focussed defence," which appears to have been relevant to the sentencing exercise.

The court ultimately sentenced the offender to 25 years' imprisonment with a non-parole period of 18 years and 9 months, reflecting an allowance below the standard non-parole period of 20 years.

Orders Made

  • Convicted of the murder of Wachira Phetmang
  • Sentenced to 25 years' imprisonment, commencing 11 September 2018 and expiring 10 September 2043
  • Non-parole period of 18 years and 9 months, expiring 10 June 2037
  • First eligible for release on parole on 11 June 2037

Key Takeaways

  • The Supreme Court confirmed the two-guidepost sentencing methodology for murder: the court must remain mindful of both the maximum sentence of life imprisonment and the standard non-parole period of 20 years, without treating the latter as a default starting point requiring reasons for departure (following Muldrock v R).
  • A murder arising from a planned robbery can be assessed as mid-range in seriousness where the killing itself was not premeditated, even where the surrounding conduct, including luring the victim and contemptuous disposal of the body, was deliberate and calculated.
  • Adverse findings of fact at sentencing must be established beyond reasonable doubt, while findings favourable to the offender need only be established on the balance of probabilities (R v Olbrich).
  • Mitigating factors in a murder case must be weighed in the context of the offence's position as the most serious crime in the criminal calendar; their weight does not operate in isolation from that context.
  • A non-parole period below the statutory standard of 20 years does not require the sentencing court to find exceptional circumstances; it results from a holistic assessment of all relevant factors.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A (standard non-parole period for murder), s 61(1) (life sentences)

Cases
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Knight v R [2006] NSWCCA 292
- R v Dong [2021] NSWCCA 82