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Supreme Court 1 December 2023

R v Allen

[2023] NSWSC 1495

Assault & violenceHomicideDrugsTheft & property
CRIME SENTENCING MURDER

Citation: R v Allen [2023] NSWSC 1495
Court: Supreme Court of New South Wales
Date: 1 December 2023
Judge(s): Fagan J

Background

The offender, Raymond Allen, was convicted of murder following a jury trial at Wollongong in October 2023. The victim, David McArthur, was a 49-year-old former soldier who lived in a caravan park at Sanctuary Point and had been dealing in small quantities of methylamphetamine to users in the Nowra area.

Allen and his associate, Dean Vimpani, planned to rob McArthur of drugs or money. Allen armed himself with a kitchen knife before travelling to Sanctuary Point, anticipating that McArthur's army background might make him likely to resist. Vimpani attempted to cut power to the caravan to draw McArthur outside, but the plan only partly succeeded.

When Allen confronted McArthur at the door of his caravan, he delivered a single knife thrust to McArthur's right upper chest, severing the subclavian artery and vein. McArthur managed to retreat inside and barricade the door, but died from massive blood loss before paramedics arrived. Allen fled without taking anything.

  • Whether a life sentence was warranted under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What the offender's precise mental state (intent) was at the time of the stabbing
  • What weight to give to mitigating and aggravating factors, including intoxication, criminal history, and absence of remorse
  • How to calibrate the sentence against the sentence imposed on the co-offender, Vimpani, who had pleaded guilty on a lesser basis of liability

Decision

Fagan J determined that a life sentence was not warranted because, while the murder was serious, the criteria under s 61 of the Crimes (Sentencing Procedure) Act 1999 were not met. The court accepted that Allen had not formed an intention to kill, but found beyond reasonable doubt that he intended to inflict grievous bodily harm and knew it was highly likely he would need to use the knife during the robbery.

The court rejected Allen's self-defence evidence in line with the jury's verdict. Fagan J also found Allen an unreliable witness, noting conflicts with several other witnesses whose evidence was preferred. The court found that Allen's intoxication, while relevant, did not reduce his culpability significantly, and that he entered the confrontation with no plan to limit the violence he expected to occur.

In assessing the sentence against that imposed on Vimpani, Fagan J found the two cases to be on very different footings. Vimpani was sentenced on the basis of extended common purpose liability, which is significantly less serious than Allen's direct liability as the person who carried and used the knife. Before Vimpani's 25 per cent guilty plea discount, his indicative sentence was 17 years and 4 months with a 12-year non-parole period. Allen's greater objective culpability, combined with the absence of a guilty plea, justified a substantially higher sentence.

The court also adjusted the non-parole period to account for a concurrent sentence for reckless wounding that Allen was already serving, ensuring the overall ratio of non-parole period to total sentence remained appropriate without entirely displacing the effect of that earlier sentencing determination.

Orders Made

  • Allen sentenced to imprisonment for 22 years, commencing 6 October 2022 and expiring 5 October 2044
  • Non-parole period of 15 years and 9 months, expiring 5 July 2038
  • Earliest eligible parole date: 5 July 2038
  • Upon expiry of sentence, Allen will be subject to the Crimes (High Risk Offenders) Act 2006 (NSW)

Key Takeaways

  • A life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999 requires a level of culpability that was not established on these facts, even where a murder is committed with a knife during a planned robbery.
  • Intent to kill is not a necessary finding for a murder conviction; the Supreme Court was satisfied beyond reasonable doubt that Allen intended grievous bodily harm, consistent with the jury's verdict.
  • Where co-offenders are sentenced on materially different bases of liability, direct comparison of their sentences requires careful analysis. Vimpani's liability arose through extended common purpose, making his objective culpability significantly lower than Allen's as the person who planned and carried out the knife attack.
  • Intoxication at the time of the offence did not substantially reduce Allen's culpability, particularly where he had armed himself in advance and anticipated using the weapon.
  • A sentencing court may adjust the non-parole period for a new sentence to preserve the practical effect of an earlier sentencing determination involving special circumstances, rather than allowing the new sentence to entirely override it.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61 (life sentence criteria) and standard non-parole period provisions
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases: No cases were cited in the provided judgment text.