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Supreme Court 9 March 2021

R v Botrus (No 6)

[2021] NSWSC 199

Assault & violenceHomicide
SENTENCE OBJECTIVE SERIOUSNESS AGGRAVATING FACTORS SUBJECTIVE FEATURES SUBSTANCE ABUSE DISORDER SOCIAL DISADVANTAGE

Citation: R v Botrus (No 6) [2021] NSWSC 199
Court: Supreme Court of New South Wales
Date: 09 March 2021
Judge: Walton J

Background

The offender was convicted by jury on 17 September 2020 of the murder of a 20-year-old man at a barbershop in Bossley Park, Sydney. The offence occurred on 11 January 2019. The offender, who was 18 years and five months old at the time, had tracked the deceased to the barbershop via a messaging application, conducted multiple reconnaissance laps of the area on a motorcycle, then entered through the rear door still wearing his helmet and stabbed the deceased once near the collarbone.

The offender entered a not guilty plea and identity was the central issue at trial. He had been in custody since the day of the offence. His background included refugee status following a childhood in war-torn Iraq and Turkey, significant family trauma including witnessing his 15-year-old brother's suicide by hanging, and a history of substance abuse involving cannabis and alprazolam.

At sentence, the parties disputed the objective seriousness of the offence, the weight to be given to the offender's personal background and social disadvantage, and whether special circumstances existed to justify adjusting the standard non-parole period ratio.

  • Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or whether a finite term was appropriate
  • The correct basis for assessing the offender's intent: intention to kill versus intention to inflict grievous bodily harm
  • The objective seriousness of the offence and the weight of aggravating factors
  • The relevance and weight of the offender's subjective circumstances, including youth, social disadvantage, substance abuse disorder, and the trauma of his upbringing
  • Whether special circumstances existed to justify varying the standard non-parole period ratio

Decision

Walton J declined to impose a life sentence. The Crown did not seek to establish that the offence fell within the "worst case" category under s 61(1) of the Sentencing Act, and his Honour was satisfied that a finite term was appropriate having regard to both the objective circumstances and the offender's personal background.

On intent, the Crown conceded, and his Honour accepted, that the offender's culpability should be assessed on the basis of an intention to inflict grievous bodily harm rather than an intention to kill. His Honour acknowledged the principle from Charbaji v R that the absence of an intention to kill does not automatically reduce objective seriousness, but found that the circumstances here did not warrant treating the offender's intent as equivalent in gravity to an intention to kill.

On subjective circumstances, his Honour accepted that the offender's background involved genuine hardship, including refugee trauma, his brother's suicide, and a diagnosed substance abuse disorder. While the Crown submitted this was not social disadvantage of the depth considered in Bugmy v The Queen, his Honour gave weight to these factors as bearing on moral culpability and as moderating, to some degree, the weight to be placed on general deterrence. The offender's youth and low normal intelligence, as assessed by Dr Nielssen, were also taken into account, along with his prospects of developing maturity and capacity for rehabilitation over time.

Special circumstances were found to exist on three grounds: the offender's youth, his low normal intelligence and the expectation that maturity would develop only over time, and his substance abuse disorder. These warranted a modest adjustment to the statutory ratio between the non-parole period and the total sentence.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 14 years, commencing 11 January 2019 and expiring 10 January 2033.
  • The balance of term was 6 years, commencing 11 January 2033 and expiring 10 January 2039.
  • The total term of imprisonment is 20 years.
  • The offender is eligible for release on parole on 10 January 2033.
  • The offender was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C of that Act.

Key Takeaways

  • The Supreme Court confirmed that assessing objective seriousness in a murder case requires consideration of all circumstances, not the question of intent alone. An intention to inflict grievous bodily harm will often, but not always, produce a lesser finding of objective seriousness than an intention to kill.

  • Under Bugmy v The Queen, a background of childhood disadvantage and trauma can moderate the weight given to general deterrence and may bear on an assessment of moral culpability, even where the offender's family life in Australia was described as close and loving.

  • A diagnosed substance abuse disorder, when combined with youth and delayed cognitive maturity, can constitute special circumstances justifying a modest variation of the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • The two legislative guideposts of maximum penalty and standard non-parole period must both be considered together with all other relevant factors as part of the instinctive synthesis required by Markarian v The Queen and Muldrock v The Queen.

  • Any adjustment to the non-parole period remains constrained by the criminality involved. The non-parole period must not be reduced beyond the level necessary to punish the offender and provide specific deterrence, as confirmed in Goodbun v R.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 54A, 54B, 61(1)

Cases:
- Apps v R [2006] NSWCCA 290
- BM v R [2019] NSWCCA 223
- BP v R (2010) 201 A Crim R 379
- Bugmy v The Queen (2013) 249 CLR 571
- Casey v R [2015] NSWCCA 142
- Charbaji v R [2019] NSWCCA 28
- Cheung v The Queen (2001) 209 CLR 1
- GG v R [2018] NSWCCA 280
- Goodbun v R [2020] NSWCCA 77
- Isaacs v R (1997) 41 NSWLR 374
- Markarian v The Queen (2005) 228 CLR 357
- MB v R [2013] NSWCCA 254
- Muldrock v The Queen (2011) 244 CLR 120
- R v Brookes (No 5) [2017] NSWSC 824
- R v Carr [2009] NSWSC 995
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554
- R v Halloun [2014] NSWSC 1705
- R v Hillsley (2006) 164 A Crim R 252
- R v Hines (No 3) [2014] NSWSC 1273