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Supreme Court 16 September 2022

R v Batak (No 5)

[2022] NSWSC 1217

HomicideTheft & propertyFirearms & weapons

Citation: R v Batak (No 5) [2022] NSWSC 1217
Court: Supreme Court of New South Wales
Date: 16 September 2022
Judge(s): R A Hulme J

Background

The offender was found guilty by a jury of two offences as an accessory before the fact: the murder of one occupant of a Five Dock home during a botched armed robbery in April 2019, and the attempted armed robbery of another occupant whilst armed with a dangerous weapon. The offender had supplied the principal offender, a longstanding acquaintance, with a loaded Glock pistol and clothing for the home invasion. During the robbery, gunfire was exchanged between the principal and the targeted drug dealer, and a third occupant was fatally shot.

The murder conviction rested on the doctrine of constructive murder: the act causing death was done in the course of an attempt to commit an offence carrying a maximum of 25 years imprisonment. The offender's role was that of an accessory before the fact rather than a direct participant in the violence.

The sentencing hearing raised contested issues about the offender's background, the weight to be given to a psychologist's report, and, most significantly, whether the standard non-parole period prescribed for murder applied to an accessory before the fact.

  • Whether the standard non-parole period for murder applies to a person convicted as an accessory before the fact to murder
  • How the sentencing court should approach multiple offences where the criminality of one is entirely subsumed by the other
  • Whether the offender's account given at the sentence hearing should be accepted as a factual basis for sentencing
  • Whether the offender's background, including claimed childhood disadvantage and youth, constituted meaningful mitigating factors

Decision

Standard non-parole period: Hulme J identified a longstanding controversy about whether the standard non-parole period for murder applies to accessories before the fact. A brief statement in the Court of Criminal Appeal's 2007 decision in Aoun v R has been treated by various single judges as authority for the proposition that it does not apply. However, a 2007 amendment to s 346 of the Crimes Act 1900 (NSW) changed the relevant wording so that accessories are liable to "the same punishment to which the person would have been liable had the person been the principal offender." His Honour noted the amendment post-dated Aoun v R by weeks, and the legislative history provided no clear guidance on the intended effect regarding standard non-parole periods. Hulme J concluded the controversy remained unresolved and called for the Court of Criminal Appeal or Parliament to authoritatively determine the question. Following the existing first-instance line of authority, his Honour declined to apply the standard non-parole period in the formal sense, while treating it as an indication of the legislature's attitude to the gravity of the underlying offence.

Concurrent sentences and totality: The court found that the criminality involved in the accessory before the fact to attempted armed robbery was entirely subsumed within the criminality of the accessory before the fact to murder, given the robbery was the predicate offence for the constructive murder. Concurrent rather than cumulative sentences were therefore appropriate.

Offender's version rejected: Hulme J declined to accept the account the offender gave at the sentence hearing, finding it inconsistent with the trial evidence, the jury's verdicts, and his own findings of fact. As a consequence, the psychologist's opinion based on that account, including the assessment of remorse and contrition, was given reduced weight.

Subjective factors: The court found that the offender's claimed childhood disadvantage did not meet the threshold considered in Bugmy v The Queen, a point effectively conceded by defence counsel. The submission that the offender's age of 26 at the time of offending warranted significant mitigation was also given little practical weight in the circumstances.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The question of whether the standard non-parole period for murder applies to an accessory before the fact to murder remains unresolved at the first-instance level in New South Wales, and Hulme J expressly called for appellate or legislative clarification.
  • A consistent line of Supreme Court decisions has declined to apply the standard non-parole period formally in accessory before the fact to murder cases, while still treating it as a legislative guidepost to the seriousness of the offence.
  • Where the criminality for a lesser offence is entirely subsumed within a more serious offence arising from the same facts, concurrent rather than cumulative sentences reflect the correct application of totality principles.
  • An offender's version of events given at the sentence hearing that is inconsistent with the jury's verdict and trial evidence will not be accepted as the factual basis for sentence, and expert reports premised on that version will be treated with corresponding caution.
  • Claimed mitigating factors such as childhood disadvantage and youth carry little practical weight in sentencing when the offender's own evidence establishes a stable upbringing, family support, and an acknowledged capacity to distinguish right from wrong.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1), 19A(1), 97(2), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(g) & (h), 54D, Pt 4 Div 1A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Legislation Amendment Act 2007 (NSW)

Cases:
- Aoun v R [2007] NSWCCA 292
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Merrin [2007] NSWCCA 255
- DJB v R, R v DJB [2007] NSWCCA 209
- Corda v R [2014] NSWCCA 281
- Lambkin v R [2020] NSWCCA 327
- Darcy v R [2022] NSWCCA 54
- R v Jaghbir (No 4) [2020] NSWSC 1704
- R v Coskun (No 5) [2022] NSWSC 1216
- R v AC (No 7) [2016] NSWSC 404
- R v Zanker (No 2) [2017] NSWSC 1254
- R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654
- R v Proud [2017] NSWSC 286
- R v Kirchner [2011] NSWSC 1516