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Supreme Court 1 December 2023

R v Tiriaki

[2023] NSWSC 1480

Assault & violenceHomicideFirearms & weapons
CRIME SENTENCING CONSTRUCTIVE MURDER YEAR OLD SOUND PROSPECTS OF REHABILITATION

Citation: R v Tiriaki [2023] NSWSC 1480
Court: Supreme Court of New South Wales
Date: 1 December 2023
Judge: Rothman J

Background

On New Year's Eve 2011, the offender and a co-offender attempted a break-and-enter at a Chester Hill home with the intent to kidnap and assault one or more occupants, bringing duct tape and a knife for that purpose. When the deceased householder entered his lounge room to investigate, the co-offender shot and killed him with a .357 Magnum revolver. The offender was 21 years old at the time of the offending. He was not aware his co-offender was carrying a firearm, beyond a vague reference that the co-offender had "something" to protect them both if anyone inside was armed.

The offender was first convicted of murder by a jury in 2014, but the conviction was set aside after the co-offender came forward and admitted to being the shooter. The Court of Criminal Appeal ordered a retrial in March 2023. On the retrial, the offender pleaded guilty to murder on a constructive murder basis, having been in custody since March 2012.

The sentencing proceedings required the court to address the applicable guilty plea discount provisions, the objective seriousness of the offence, and the offender's subjective circumstances, including his youth, rehabilitation prospects, and parity with the co-offender's outcome.

  • Whether Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prescribes guilty plea discounts for indictable offences, applied to proceedings commenced before those provisions took effect in April 2018.
  • How to assess the objective seriousness of a constructive murder where the offender did not fire the fatal shot and had limited knowledge of the co-offender's weapon.
  • What weight to give the offender's youth, rehabilitation prospects, and expression of remorse in setting the sentence.
  • Whether the principle of parity required the sentence to reflect the co-offender's more favourable outcome (manslaughter at the first trial).

Decision

Guilty plea discount provisions. The court found that the proceedings against the offender had commenced before the 2017 amending legislation took effect, making the unamended provisions applicable. The proceedings were classified as "existing proceedings" within the meaning of the transitional provisions in Schedule 2, Part 30 of the Sentencing Procedure Act. Accordingly, the new Division 1A discount regime did not apply.

Objective seriousness. Rothman J found the offence to be of serious gravity. The offenders entered an occupied home in the early hours of New Year's Day, with infants and teenagers present, intending to detain and assault occupants. They brought restraints and a weapon. However, the court accepted that the offender had no specific knowledge that his co-offender was armed with a lethal weapon. His culpability was assessed as lower than that of the actual shooter, but the offence remained a serious instance of constructive murder.

Subjective circumstances. The court gave significant weight to the offender's youth (21 at the time of offending), his sound prospects of rehabilitation, strong family support, and genuine expressions of remorse and acknowledgment of responsibility. These factors led Rothman J to reduce the emphasis ordinarily placed on specific and general deterrence, while acknowledging those considerations would otherwise loom large.

Parity and special circumstances. The court acknowledged that by pleading guilty to murder rather than contesting the charge in the hope of a manslaughter verdict, the offender had foregone the outcome his co-offender achieved. Special circumstances were found, warranting a reduction in the statutory ratio between the non-parole period and the balance of the sentence, based on the offender's youth and rehabilitation prospects. A head sentence of 20 years was the starting point before reductions.

Orders Made

  • The offender was convicted of the murder of the deceased on 31 December 2011 at Chester Hill.
  • Sentenced to a full-time custodial term comprising:
  • Non-parole period of 11 years and 8 months, commencing 6 June 2012 and concluding 5 February 2024.
  • Remainder of term of 5 years and 10 months, concluding 5 December 2029.
  • First eligible for parole on 5 February 2024.
  • Special circumstances found.
  • The offender was notified, pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), of the potential application of that Act, with the legal team directed to explain its significance.

Key Takeaways

  • Constructive murder liability under s 18 of the Crimes Act 1900 (NSW) can attach to an offender who did not fire a fatal shot, where the shooting occurred during the attempted commission of a crime punishable by 25 years imprisonment and fell within the scope of a joint criminal enterprise.
  • Transitional provisions under Schedule 2, Part 30 of the Crimes (Sentencing Procedure) Act 1999 preserve the pre-amendment sentencing regime for "existing proceedings" commenced before April 2018, meaning the Division 1A guilty plea discount provisions did not apply to these proceedings.
  • Where an offender is young, demonstrates sound rehabilitation prospects, and has strong family support, a sentencing court may give those factors greater weight and correspondingly reduce the emphasis on specific and general deterrence.
  • Special circumstances justifying a departure from the statutory non-parole ratio are available where youth and rehabilitation prospects warrant a longer period of supervised release.
  • Parity considerations are relevant even where a co-offender's lesser outcome was achieved at trial rather than on sentence, with the court acknowledging the offender had surrendered the chance of a manslaughter verdict by pleading guilty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1A; Sch 2, Pt 30, ss 88, 89, 90
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Criminal Appeal Act 1912 (NSW), ss 6, 8

Cases:
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Hancock v Prison Commissioners [1960] 1 QB 117
- R v LNT [2005] NSWCCA 307
- R v Wright [2009] NSWCCA 3
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28