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Court of Criminal Appeal 16 August 2023

Owens v R

[2023] NSWCCA 198

HomicideFirearms & weapons
CRIM E APPEALS APPEAL AGAINST SENTENCE ASSISTANCE TO AUTHORITIES APPEAL UPHELD APPLICANT RESENTENCED

Citation: Owens v R [2023] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 16 August 2023
Judges: Wright J (lead judgment), Wilson J, Fagan J

Background

The applicant pleaded guilty in the Supreme Court to one count of murder and two firearms offences. The murder arose from an armed robbery during which the victim, a man in his late sixties, was attacked with knives in his home and left mortally wounded. At sentencing, three further offences unrelated to the murder were taken into account on a Form 1 document.

On 3 August 2018, Schmidt J imposed an aggregate sentence of 22 years and 6 months, with a non-parole period of 16 years and 11 months. Her Honour applied a combined discount of 38 per cent to the indicative sentence for murder, comprising 25 per cent for the guilty plea and 13 per cent for assistance to authorities. However, the 13 per cent assistance discount was not applied to the indicative sentences for the two firearms offences.

The applicant filed his notice of application for leave to appeal in August 2021, outside the applicable time limit. The Court of Criminal Appeal granted leave to apply out of time, noting that the delay was not the applicant's fault and that the first ground of appeal raised an issue warranting full consideration.

  • Whether the sentencing judge erred by not applying the assistance discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to the indicative sentences for the two firearms offences
  • Whether the sentencing judge gave adequate reasons for confining the assistance discount to the murder offence only
  • Whether the failure to notify the applicant of that approach denied him procedural fairness
  • Whether the aggregate sentence was manifestly excessive (ground 2, ultimately not determined)

Decision

Ground 1: Assistance discount confined to murder only

Wright J (Fagan J agreeing) found that the sentencing judge had erred in principle under s 23(2)(i) of the Crimes (Sentencing Procedure) Act 1999. Her Honour had proceeded on the incorrect basis that the applicant was not "entitled" to any assistance discount in relation to the firearms offences because the promised assistance was not "relevant" to those particular offences. This was a wrong principle: a discount for assistance to authorities is not limited to offences to which the assistance itself directly relates.

Wilson J reached the same practical conclusion but characterised the error differently. In Wilson J's view, the sentencing judge had not proceeded on the incorrect legal belief that s 23 could never apply to the firearms offences. Rather, the error lay in the sentencing judge's failure to make clear whether she understood that a discount had only been sought in relation to the murder, leaving the basis for confining the discount opaque. Wilson J emphasised that transparent and accessible reasons are necessary to maintain public confidence in the administration of criminal justice. Despite this difference in reasoning, the majority upheld the appeal on ground 1.

Re-sentencing

Having found error on ground 1, it was unnecessary to consider the manifest excess ground. Wright J, applying the sentencing discretion afresh, adopted the same starting points as the original sentencing judge, including a head sentence of 30 years for the murder. The applicant's assistance, though erratic, had made some contribution towards the relevant outcomes, and neither party disputed the overall 38 per cent combined discount. That combined discount of 38 per cent (25 per cent for the guilty plea and 13 per cent for assistance) was applied to the indicative sentences for all three offences. The resulting aggregate sentence was reduced to 21 years and 9 months, with a non-parole period of 16 years and 3 months.

Wilson J dissented on the re-sentencing outcome, taking the view that the applicant's failure to fully comply with his offer of assistance was a relevant consideration and that the substitute sentence should be no less severe than the original. Wilson J would have dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal upheld (by majority: Wright J and Fagan J)
  • Applicant re-sentenced to an aggregate term of imprisonment of 21 years and 9 months, comprising a non-parole period of 16 years and 3 months and a balance of term of 5 years and 6 months

Key Takeaways

  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, a discount for assistance to authorities is not confined to the offence to which the assistance directly relates; it may be applied across all offences being sentenced at the same time.
  • A sentencing court proceeds on a wrong principle if it treats an offender as not "entitled" to an assistance discount on the basis that the promised assistance is unrelated to the particular offence being sentenced.
  • Adequate and transparent reasons are required when a court declines to apply an assistance discount to particular offences, so that the basis for the decision is clear and open to appellate review.
  • In granting leave to appeal out of time, the Court of Criminal Appeal confirmed that where delay is not attributable to the applicant and the ground of appeal raises a substantive issue, the interests of justice may favour granting the extension.
  • An applicant's failure to fully cooperate with authorities during one of several proceedings does not necessarily neutralise the overall efficacy of promised assistance, though the extent of non-compliance remains a relevant consideration on re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23, 53A(2)
- Crimes Act 1900 (NSW), ss 18(1)(a), 22, 112(2), 154F
- Firearms Act 1996 (NSW), ss 51H(1), 65(3)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- A v R [2018] NSWCCA 289
- Bugmy v The Queen (2013) 249 CLR 571
- DL v The Queen (2018) 265 CLR 215
- Greentree v R [2018] NSWCCA 227
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- R v Cartwright (1989) 17 NSWLR 243
- R v XX [2017] NSWCCA 90
- RJT v R [2012] NSWCCA 280
- Spiteri-Ahern v R [2022] NSWCCA 56
- Zreika v R [2012] NSWCCA 44