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Supreme Court 18 November 2021

R v Archer

[2021] NSWSC 1485

Homicide
CRIMINAL LAW MURDER S ENTENCE AFTER TRIAL SINGLE STAB WOUND ASSESSMENT OF OBJECTIVE CRIMINALITY UNPLANNED ATTACK

Citation: R v Archer [2021] NSWSC 1485
Court: Supreme Court of New South Wales
Date: 18 November 2021
Judge: Hamill J

Background

Around midnight on 16 February 2020, the offender entered a neighbour's unit at a Redfern housing block while armed with a knife and in a highly agitated state. He believed the victim, a fellow resident, had stolen property from his apartment the previous week, including a personal computer. When the victim arrived at the unit shortly afterwards, the offender immediately attacked him.

The offender stabbed the victim once. The knife pierced the victim's scapula, entered the chest cavity, and penetrated his lung and aorta. The wound was fatal.

The offender was tried for murder over approximately two weeks in May and June 2021. He gave evidence that the stabbing was accidental and occurred in the course of a struggle in which he acted in self-defence. The jury rejected that account and returned a guilty verdict. The sentencing proceedings took place on 28 October 2021.

  • What was the appropriate assessment of the objective seriousness of the offence, given the single stab wound, the absence of a proven intention to kill, and the unplanned nature of the attack?
  • How should the offender's criminal history, including a prior conviction for wounding with intent, be treated as an aggravating factor?
  • What weight, if any, should be given to the offender's claimed mitigating factors, including background and personal circumstances, given that his evidence was found to be unreliable?
  • Was any discount available for facilitation of the course of justice?
  • How should the victim impact statements from the victim's family be taken into account on a principled basis?

Decision

Objective criminality. Hamill J found that the offending fell within the mid-range of objective seriousness for murder, though not at the higher end. The attack was unplanned and there was no proven intention to kill. However, the offender had armed himself with a knife before the confrontation and was driven by anger based on a mistaken belief that the victim had stolen from him. The court found those features elevated the seriousness of the offence above the lower range.

Criminal history. The offender had a prior conviction for wounding with intent, which the court treated as an aggravating factor. Hamill J noted that a prior conviction for a similar offence of violence is directly relevant to sentencing and to the purposes of general and specific deterrence.

Disputed mitigation. The offender relied on various claims about his personal history and background to support mitigation. Hamill J rejected most of those claims, finding the offender to be an unreliable and self-serving historian. Hearsay evidence tendered in support of the claimed mitigating circumstances was not accepted on the balance of probabilities. The court found that mitigation going to background and personal circumstances was therefore of limited weight.

Facilitation of the course of justice. A small reduction in sentence was allowed on this basis, though the precise content of that finding is not fully reproduced in the available text. The victim impact statements from the victim's wife and daughters were taken into account in a principled way consistent with established Supreme Court authority, though the court acknowledged that no sentence could relieve the family's suffering.

Orders Made

  • The offender was convicted and sentenced for the murder of the victim.
  • Non-parole period of 13 years and 6 months, commencing 16 February 2020 and expiring 15 August 2033.
  • Balance of term of 6 years, expiring 15 August 2039.
  • The offender is eligible for release on parole at the expiration of the non-parole period, with a recommendation for release on that date if he remains of good behaviour in custody.
  • Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the court noted that the Act applies to the offence of murder and directed the offender's lawyers to explain the possible implications at the end of the sentence.

Key Takeaways

  • An unplanned attack using a knife, motivated by anger and a mistaken belief about the victim's conduct, does not automatically place a murder at the lower end of objective seriousness, particularly where the offender armed himself before the confrontation.
  • Where an offender is found to be an unreliable and self-serving historian, courts may decline to accept hearsay evidence tendered in support of claimed mitigating circumstances, significantly limiting the weight given to personal background factors.
  • A prior conviction for a similar offence of violence, such as wounding with intent, is treated as a directly relevant aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) and bears on both general and specific deterrence.
  • Victim impact statements from secondary victims, including family members, are taken into account in sentencing on a principled basis consistent with established authority, but cannot alter the fundamental sentencing calculus beyond recognised limits.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a formal warning must be given at sentencing that the Act applies to murder, obliging legal representatives to advise their client of the implications before the end of the custodial term.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 4
- Crimes (High Risk Offenders) Act 2006 (NSW) s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22A, 23, 23A, 44, 54A
- Evidence Act 1995 (NSW) s 4(2)

Cases
- Adegoke v R [2013] NSWCCA 193
- Apps v R [2006] NSWCCA 290
- Devaney v R [2012] NSWCCA 285
- Droudis v R [2020] NSWCCA 322; (2020) 103 NSWLR 806
- Ghamraoui v R [2009] NSWCCA 111
- Higgins v R [2020] NSWCCA 169
- Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
- Khudadadi v R [2021] NSWCCA 259
- R v Brooks (No 5) [2017] NSWSC 824
- R v Do (No 4) [2015] NSWSC 512
- R v Halloun [2014] NSWSC 1705
- R v Hines (No 3) [2014] NSWSC 1273
- R v Johnson [2015] NSWSC 31
- R v M.A.K; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Ruttley (No 7) [2017] NSWSC 1582
- R v Spinks [2021] NSWSC 649
- R v Sumpton (No 4) [2015] NSWSC 684
- R v Wood [2014] NSWCCA 184; (2014) 244 A Crim R 501
- Sumpton v R [2016] NSWCCA 162