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Supreme Court 29 April 2022

R v ZT

[2022] NSWSC 511

Homicide
CRIMINAL LAW SENTENCE MURDER VICTIM IMPACT STATEMENT YOUNG OFFENDER OBJECTIVE SERIOUSNESS

Citation: R v ZT [2022] NSWSC 511
Court: Supreme Court of New South Wales
Date: 29 April 2022
Judge: Walton J

Background

The offender, ZT, was convicted on 9 December 2021 following a 13-day jury trial of the murder of William Chaplin, committed between 20 March and 31 May 2010 at Gerogery, NSW. The offender was 16 years old at the time of the offence. He was 29 years old at the date of sentencing.

The offender was arrested on 5 September 2019 in Townsville, Queensland, and had been in continuous custody from that date. By the sentencing hearing on 11 March 2022, he had spent approximately two years, six months, and seven days in pre-sentence custody.

The sentencing proceedings involved a significant body of evidence bearing on both the objective seriousness of the offence and the offender's subjective circumstances, including psychological reports, developmental and family history, a history of sexual abuse, drug and alcohol use, and risk assessment evidence.

  • 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
  • How to assess the objective seriousness of the offence, given it was committed in the context of an extended joint criminal enterprise
  • How to weigh the offender's youth (aged 16 at the time of the offence) and complex subjective circumstances against the gravity of a murder conviction
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of term
  • How to determine the non-parole period in the absence of the standard non-parole period regime, which does not apply where the offender was under 18 at the time of the offence

Decision

Walton J declined to impose a life sentence. The Crown did not seek to establish that the case fell within s 61(1) of the Sentencing Act, and the Court found it appropriate, notwithstanding the objective seriousness of the offence, to impose a finite term. The Court applied the instinctive synthesis approach affirmed in Markarian v The Queen (2005) 228 CLR 357, weighing all relevant factors together to arrive at a proportionate sentence.

The standard non-parole period of 20 years prescribed for murder under the Sentencing Act did not apply, because the offender was under 18 at the time of the offence (s 54D(3)). The Court nonetheless took the maximum penalty of life imprisonment as a reference point and compared the offending against the most serious class of cases.

The Court took into account the offender's age at the time of the offence, his complex and troubled developmental history (including a history of sexual abuse), his psychological profile, his drug addiction (then in remission in custody), and the treatment needs that would extend into the community. These subjective factors informed both the assessment of moral culpability and the finding of special circumstances, which warranted adjusting the ratio between the non-parole period and the balance of term. The Court was careful to note that the non-parole period must not be reduced beyond what is necessary to punish the offender, consistent with Goodbun v R [2020] NSWCCA 77.

The victim impact statement of the deceased's mother, Ms Marlene Carter, was received and acknowledged. The Court treated it as giving texture to the harm done to the victim's family and the broader community, consistent with the purposes of sentencing under s 3A of the Sentencing Act.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 8 years, commencing 5 September 2019 and expiring 4 September 2027
  • The balance of term is 4 years, commencing 5 September 2025 (noting the overlap, which reflects the backdating) and expiring 4 September 2031
  • The offender is eligible for release on parole on 4 September 2027
  • The sentence was backdated to the date of arrest, 5 September 2019

Key Takeaways

  • The standard non-parole period regime for murder (20 years) does not apply where the offender was under 18 at the time of the offence, by operation of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A finding of special circumstances, permitting a departure from the default non-parole/balance of term ratio, was supported here by the offender's first-time imprisonment, need for supervised reintegration, and drug addiction requiring ongoing treatment in the community.
  • Under s 61(1) of the Sentencing Act, the onus falls on the Crown to establish that the level of culpability is so extreme as to require a life sentence; where the Crown does not seek to discharge that onus, a finite term remains available to the sentencing court.
  • Victim impact statements serve the purpose of giving texture to the harm done to the community and the victim's family, and are received as part of the sentencing process under ss 30A and 30B of the Sentencing Act, rather than as a factor that aggravates penalty beyond permissible limits.
  • Sentencing a young offender for an offence of the utmost gravity requires the court to balance objective seriousness, moral culpability informed by age and personal history, and the purposes of sentencing through the instinctive synthesis described in Markarian, ensuring reasonable proportionality between sentence and offending circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 28, 30A, 30B, 30E, 54A, 54B, 54D, 61

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Goodbun v R [2020] NSWCCA 77
- Casey v R [2015] NSWCCA 142
- Dalley v R [2002] NSWCCA 284
- Kane v R [2001] NSWCCA 150
- GG v R [2018] NSWCCA 280
- BM v R [2019] NSWCCA 223
- Lawson v R [2018] NSWCCA 215
- Apps v R [2006] NSWCCA 290
- Charbaji v R [2019] NSWCCA 28
- R v Taha [2022] NSWCCA 46