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Supreme Court 17 February 2023

R v EE

[2023] NSWSC 104

HomicideTheft & propertyFirearms & weapons
CRIME SENTENCE CONSTRUCTIVE MURDER OFFENDER PLEADED GUILTY JUVENILE AT TIME OF OFFENDING B ELOW MID

Citation: R v EE [2023] NSWSC 104
Court: Supreme Court of New South Wales
Date: 17 February 2023
Judge: Wright J

Background

In the early hours of 24 May 2020, the offender, who was a juvenile at the time, went with four accomplices to the home of the deceased in Riverstone with the intention of committing a robbery. One accomplice carried a shortened .22 calibre rifle and another carried a 30 cm knife. The group forced their way into the house after the deceased opened the front door.

While the offender's four accomplices forced the deceased down the hallway and into the kitchen, the offender entered the loungeroom and stood over the deceased's girlfriend. In the kitchen, the accomplices stabbed the deceased multiple times. The offender was not present in the room when the stabbing occurred. The deceased died at the scene shortly afterwards.

The offender was arrested later that day. He pleaded guilty in the Children's Court of Parramatta on 25 March 2022 to murder under s 18(1)(a) of the Crimes Act 1900 (NSW), on the basis of constructive murder. A related robbery charge was placed on a Form 1 to be taken into account at sentencing.

  • What sentence is appropriate for constructive murder where the offender was a juvenile, was not present during the fatal stabbing, and had a limited role in the events leading to death?
  • How should objective seriousness be assessed for constructive murder where the offender's culpability is defined by the foundational offence (armed robbery), not by the conduct of the accomplice who inflicted the fatal wounds?
  • Whether the standard non-parole period of 20 years for murder applies to an offender who was under 18 at the time of the offence.
  • How should discounts for a guilty plea and assistance to authorities be calibrated in this context?
  • What weight should the offender's significant subjective circumstances receive, including his youth, background, and prospects for rehabilitation?

Decision

Wright J confirmed that the standard non-parole period of 20 years for murder does not apply where the offender was under 18 at the time of the offence, pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The maximum penalty of life imprisonment nonetheless remained a relevant legislative guidepost indicating the inherent gravity of the offence.

Drawing on DS v R, DM v R [2022] NSWCCA 156, Wright J held that objective seriousness for constructive murder must be assessed by reference to the offender's own conduct and what was encompassed by the guilty plea, not by reference to the fatal actions of the co-offenders. On that basis, his Honour assessed the offending as below the mid-range of objective seriousness. The offender had not been present during the stabbing, had not carried any weapon, and his only admitted state of mind extended to an awareness of the possibility that a non-fatal wound might be inflicted.

The court acknowledged constructive murder is not to be treated as inherently less serious than other categories of murder and does not attract a lighter sentence by category alone. The appropriate sentence turns on the particular offender's conduct, role, age, and background. Wright J applied meaningful discounts for the guilty plea and for assistance provided to authorities, and also gave substantial weight to the offender's subjective case, including his youth, deprived background, and rehabilitative prospects.

Orders Made

  • The offender is sentenced for murder (with the Form 1 robbery offence taken into account) to imprisonment comprising a non-parole period of 4 years and 2 months, commencing 23 December 2020 and expiring 22 February 2025, with a balance of term of 2 years and 1 month, expiring 22 March 2027.
  • The offender is directed to serve the whole of the non-parole period as a juvenile offender pursuant to ss 19(1), (2)(a) and (3)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
  • The earliest date of eligibility for release on parole is 22 February 2025.
  • The offender is advised of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its application to the offence pursuant to s 25C of that Act.

Key Takeaways

  • Constructive murder is not a lesser category of murder attracting a reduced sentence by default; however, the degree of an individual offender's participation in the events leading to death is central to determining the appropriate sentence.
  • Where an offender's guilty plea to constructive murder rests on the foundational armed robbery offence, objective seriousness is assessed by reference to that offender's own conduct and admitted mental state, not by reference to the co-offender's fatal act.
  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the 20-year standard non-parole period for murder does not apply to offenders who were under 18 at the time of the offence.
  • A significant subjective case, including youth, deprived background, and genuine rehabilitative prospects, can attract meaningful mitigation even in a murder sentence, particularly where the offender was a juvenile and had limited direct involvement in the fatal events.
  • The Children (Criminal Proceedings) Act 1987 (NSW) can require a juvenile offender sentenced in the Supreme Court for a serious children's indictable offence to serve the non-parole period of their sentence as a juvenile offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 94(a), 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 23, 23A, 24, 25A(1), 44, 47, 54D
- Children (Criminal Proceedings) Act 1987 (NSW), ss 16, 17, 19, Division 4
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- DS v R, DM v R [2022] NSWCCA 156
- R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Thompson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 294
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49