Citation: R v Shillingsworth [2023] NSWSC 453
Court: Supreme Court of New South Wales
Date: 1 May 2023
Judge(s): Wright J
Background
The offender pleaded guilty in the Local Court on 11 March 2022 to the murder of Kevin Kourtis and was committed to the Supreme Court for sentencing. The plea was entered on the basis of constructive murder, with the foundational offence being assault with intent to rob in company while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment.
The agreed facts described events on the evening of 23 to 24 May 2020. The offender drove four other men to the street where the deceased lived in Riverstone, NSW. All five entered the deceased's home by force, with faces covered. One co-offender carried a rifle and another carried a knife. The deceased was killed during the course of that armed home invasion.
The offender's plea did not encompass any allegation that he personally inflicted the fatal injury. His criminal liability for murder arose solely from his participation in the joint criminal enterprise to commit the armed robbery during which the death occurred.
Legal Issues
- What sentence is appropriate for an offender who pleads guilty to constructive murder as a participant in an armed robbery, where the death was caused by an accomplice?
- How should the objective seriousness of the offending be assessed where the offender's role was as a participant rather than the person who inflicted the fatal injury?
- What weight should be given to totality and parity principles when co-offenders have been sentenced separately?
- Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term.
Decision
Wright J applied the established principles for constructive murder sentencing, emphasising that constructive murder is not to be regarded as inherently less serious than other categories of murder. However, the court accepted that there are degrees of seriousness within constructive murder, and that the appropriate sentence depends on the individual offender's conduct and role. Following the Court of Criminal Appeal's approach in DS v R, DM v R [2022] NSWCCA 156, Wright J assessed objective seriousness by reference to what the offender himself admitted, not by reference to the most culpable conduct of his co-offenders.
The court identified a number of aggravating factors, including the use of weapons, the commission of the offence in company, and the fact that it occurred in the deceased's home. Mitigating factors considered included the early guilty plea, the offender's subjective circumstances, and the absence of direct involvement in inflicting the fatal wound.
A guilty plea discount was applied, though the judgment notes the available text does not specify the precise percentage. The court also found special circumstances justifying an adjustment to the standard non-parole period to balance period ratio, in order to allow for an extended period of supervised release given the offender's rehabilitation prospects.
The court had regard to the standard non-parole period of 20 years for murder as a legislative guidepost, while acknowledging that the circumstances of this offender warranted a sentence below that benchmark. Totality and parity considerations were also addressed in light of sentences imposed on co-offenders.
Orders Made
- The offender is sentenced for the murder of Kevin Kourtis to imprisonment for a non-parole period of 9 years and 6 months, commencing 11 May 2021 and expiring 10 November 2030.
- The balance of term is 4 years, expiring 10 November 2034.
- The earliest date of eligibility for release on parole is 10 November 2030.
- Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender was advised of the existence of that Act and its application to the offence committed.
Key Takeaways
- Constructive murder is not treated as a lesser category of murder attracting a lighter sentence merely because the offender did not personally inflict the fatal blow. The sentencing court confirmed this principle by reference to R v Jacobs [2004] NSWCCA 462.
- Where an offender pleads guilty to constructive murder, objective seriousness is assessed by reference to that offender's own conduct and what is encompassed in the plea, not by reference to the most culpable acts of co-offenders. This approach was affirmed in DS v R, DM v R [2022] NSWCCA 156.
- Degrees of seriousness exist within constructive murder, and differences in role, age, background, criminal history, and character must be taken into account when sentencing participants in the same offence, consistent with Lowe v The Queen (1984) 154 CLR 606.
- A finding of special circumstances permitted an extension of the balance of term beyond the standard statutory ratio, reflecting the court's assessment of the offender's rehabilitation prospects and the need for supervised reintegration.
- Upon sentencing for murder, the court was required to notify the offender of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application, pursuant to s 25C of that Act.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)-(3)
- 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
- Carreno v R [2023] NSWCCA 20
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Aslan v R [2014] NSWCCA 114
- Howard v R [2019] NSWCCA 109
- R v Houri [2007] NSWSC 615
- R v Garry Smale [2005] NSWSC 903
- R v Bell, Gavin Anthony [2013] NSWSC 1838