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Supreme Court 29 September 2021

R v Garvey; R v Jones

[2021] NSWSC 1147

Assault & violenceHomicideDrugsTheft & property
SENTENCING MURDER PRINCIPAL IN THE FIRST DEGREE PRINCIPAL IN THE SECOND DEGREE MACHETE USED TO KILL VICTIM HOME INVASION TO STEAL DRUGS

Citation: R v Garvey; R v Jones [2021] NSWSC 1147
Court: Supreme Court of New South Wales
Date: 29 September 2021
Judge: R A Hulme J

Background

Three men invaded a home in Whitebridge, Newcastle, in the early hours of 17 December 2018, intending to steal drugs from the occupants. Two of the offenders had earlier attended the same house under the pretence of being police officers, where they had stolen approximately $1,000 from the victim. Later that night, all three returned armed, wearing makeshift masks and gloves.

During the home invasion, the primary offender produced a machete and killed the victim, a 60-year-old man, in circumstances described by the court as horrific. A second offender struck the victim multiple times with a baseball bat. The third offender drove the getaway vehicle. The victim's last reported words were, "All this for $2000."

Two of the three offenders were sentenced in this proceeding. The first (referred to throughout as Garvey) pleaded guilty to murder. The second (Jones) was found guilty of murder by a jury. Both also pleaded guilty to stealing from the person and impersonating a police officer. Jones additionally pleaded guilty to a dangerous driving offence arising from the police pursuit that followed the killing. A third offender (referred to by a pseudonym, Fletcher) had already been sentenced separately after agreeing to give evidence for the prosecution.

  • Whether the objective seriousness of the murder was above mid-range, having regard to the planning involved, the use of a weapon, and the vulnerability of the setting
  • How the doctrine of extended joint criminal enterprise applied to each offender's liability for the murder
  • How parity between the sentences for Garvey and Jones should be achieved, given their different roles and the different bases for their convictions
  • What discount, if any, should be allowed to Jones for facilitating a shorter trial (as opposed to a plea of guilty that would have obviated the trial entirely)
  • Whether mitigating factors under the Bugmy principles (relating to the effect of deprived background on moral culpability) applied to either offender
  • How the totality principle should operate through partial accumulation of the sentences for the related offences

Decision

Hulme J assessed the objective seriousness of the murder as above the mid-range. The killing arose from a planned home invasion, carried out at night, by masked and gloved offenders who came armed. The victim was killed in his own home. The planning and the use of a lethal weapon were significant aggravating features.

On extended joint criminal enterprise, the court was required to determine what each offender knew and agreed to. Garvey, as the instigator and the person who wielded the machete, was treated as the principal in the first degree. Jones was found to have had sufficient knowledge of and participation in the enterprise, including its violent character, to be held liable as a principal in the second degree. The court addressed differing evidence as to precisely when Jones became aware of the machete, but the jury's verdict established the necessary knowledge and participation.

On parity, the court acknowledged that Garvey bore the greater individual culpability as the person who planned and carried out the killing. Jones, while a willing participant in a violent enterprise, did not wield the machete. The court calibrated the non-parole periods accordingly, though both sentences for murder were framed at the same overall term of 28 years and 9 months, with different non-parole components reflecting their relative culpability.

On the question of discount for facilitating a shorter trial, the court applied the principle that such a discount should ordinarily be lower than one given for a plea that would have avoided the trial altogether. The court recognised the mitigation available to Jones for facilitating the administration of justice but did not separately quantify it, treating it instead as a component within the overall sentencing exercise. The Bugmy principles, which recognise that the effects of a deprived background may reduce moral culpability even when they do not excuse conduct, were applied to the relevant offenders.

Orders Made

Jeremy Josh Garvey
- Steal from person and impersonate police officer (aggregate): 1 year and 4 months imprisonment, commencing 30 December 2023
- Murder: non-parole period of 20 years and 3 months, balance of term 8 years and 6 months (total 28 years and 9 months), commencing 30 June 2024; eligible for parole 29 September 2044
- Overall term for murder alone: 28 years and 9 months (would have been 32 years but for the guilty plea)
- Total effective sentence in conjunction with pre-existing sentences: 34 years and 3 months, with a non-parole component of 25 years and 9 months

Luke Graham Jones
- Steal from person, impersonate police officer, and police pursuit (aggregate): 1 year and 8 months imprisonment, commencing 22 December 2018
- Disqualified from holding or obtaining a driver's licence for 2 years (police pursuit offence)
- Murder: non-parole period of 21 years and 6 months, balance of term 6 years and 6 months (total 28 years and 9 months), commencing 22 September 2019; eligible for parole 21 March 2041
- Overall term: 28 years and 9 months with a non-parole component of 22 years and 3 months

Key Takeaways

  • Under the doctrine of extended joint criminal enterprise, a participant in a planned violent offence may be liable for murder where the jury is satisfied the offender had sufficient knowledge of and participation in the violent character of the enterprise, even where another participant physically inflicted the fatal injury.

  • A discount for facilitating a shorter trial sits at a lower level than the discount ordinarily available for a plea of guilty that avoids the need for a trial altogether; this decision confirms that principle within the NSW Supreme Court sentencing framework.

  • The Bugmy principles, established by the High Court, recognise that evidence of a deprived or disadvantaged background may reduce an offender's moral culpability and must be considered at sentencing, even where the background does not excuse the offending.

  • Parity between co-offenders does not require identical sentences; the court differentiated the non-parole periods for Garvey and Jones to reflect their respective roles, with the instigator who wielded the machete receiving a longer non-parole period.

  • Where related offences would otherwise have been finalised in the Local Court, the Supreme Court's sentencing discretion is constrained by the maximum penalties available in that court, and the sentences for those offences are accumulated (partially) with the murder sentence to give effect to the totality principle.

Legislation and Cases Referenced

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Droudis v R [2020] NSWCCA 322
- R v Fletcher [2020] NSWSC 1478

Legislation:
- The judgment references the maximum penalty of life imprisonment for murder and a standard non-parole period of 20 years, consistent with the Crimes Act 1900 (NSW) and Crimes (Sentencing Procedure) Act 1999 (NSW), though specific provisions were not enumerated in the text provided.