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Supreme Court 5 May 2023

R v DPD

[2023] NSWSC 477

Assault & violenceHomicideFirearms & weapons
CRIME SENTENCE CONSTRUCTIVE MURDER JUVENILE AT TIME OF OFFENDING PLEA OF GUILTY TOTALITY AND PARITY

Citation: R v DPD [2023] NSWSC 477
Court: Supreme Court of New South Wales
Date: 5 May 2023
Judge(s): Wright J

Background

The offender pleaded guilty to murder on 3 June 2022, prior to arraignment for trial. The plea was entered on the basis of constructive murder: the offender participated in a joint criminal enterprise to commit armed robbery (assault with intent to rob in company while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW)), and the deceased was killed by an accomplice during the commission of that offence. The offender did not need to have contemplated that the accomplice might stab the deceased.

The underlying offending occurred on 24 May 2020 in the Riverstone area. The offender was a juvenile at the time of the offence and was under 21 when charged before the Supreme Court. Two further offences (possession of a shortened firearm and common assault) were taken into account on a Form 1.

Because the offender had pleaded guilty to an indictable offence in a court other than the Children's Court, he was dealt with according to law. However, Wright J was required to apply the principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), including the recognition of children's dependency and immaturity, the desirability of rehabilitation and community reintegration, and the requirement that the penalty imposed be no greater than that imposed on an adult for an offence of the same kind.

  • How should the objective seriousness of constructive murder be assessed where the offender's role is assessed by reference to his own conduct and guilty plea, rather than the conduct of co-offenders?
  • What sentencing principles apply where the offender was a juvenile at the time of the offence?
  • Whether the standard non-parole period of 20 years for murder applied given the offender's age at the time of the offence.
  • How to apply totality and parity principles, including the form 1 offences.
  • Whether special circumstances existed justifying a departure from the standard non-parole to balance ratio.

Decision

Wright J confirmed that constructive murder is not to be treated as inherently less serious than other categories of murder, and does not automatically attract a lighter sentence. However, degrees of seriousness exist within the category, and the appropriate sentence must be assessed by reference to the individual offender's own conduct and the scope of the agreed plea, not by reference to what co-offenders did. This followed the approach confirmed by the Court of Criminal Appeal in DS v R, DM v R [2022] NSWCCA 156.

Because the offender was under 18 at the time of the offence, the standard non-parole period of 20 years for murder did not apply. Wright J disregarded it accordingly, pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) were applied throughout, with particular weight given to the offender's youth, immaturity, and prospects for rehabilitation.

Wright J considered all relevant mitigating and aggravating factors, including the guilty plea, the offender's age and background, and the circumstances of the offending itself. The Form 1 offences were taken into account in the overall sentencing exercise. The sentence structure reflects special circumstances justifying a longer balance of term relative to the non-parole period, consistent with the offender's need for supervised reintegration following a lengthy period of incarceration beginning in his teenage years.

Orders Made

  • The offender was sentenced for the murder of Kevin Kourtis (with the firearm possession and common assault offences taken into account on the Form 1) to imprisonment with a non-parole period of 10 years and 3 months, commencing 23 April 2021 and expiring 22 July 2031, and a balance of term of 5 years expiring 22 July 2036.
  • The earliest date the offender is eligible for release on parole is 22 July 2031.
  • The offender was notified of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), pursuant to s 25C of that Act.

Key Takeaways

  • Constructive murder carries no automatic sentencing discount relative to other murder categories; the objective seriousness of each case turns on the individual offender's own conduct and the scope of their plea, not the actions of co-offenders.
  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period for murder (20 years) does not apply where the offender was under 18 at the time of the offence.
  • Even when a juvenile offender is sentenced "according to law" in the Supreme Court, the court must still apply the principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), including considerations of rehabilitation, reintegration, and proportionality to adult sentences.
  • Where the offender's guilty plea was entered on a limited basis (admitting participation in a joint enterprise but not personally contemplating lethal harm), the sentencing court assesses culpability consistently with the scope of that plea.
  • A notification under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) is required where the offence falls within the scope of that Act, regardless of the offender's age at the time of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 61, 94(a), 97
- Firearms Act 1996 (NSW), s 62(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 16, 17, Div 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 23, 23A, 24, 25A(1), 44, 47, 54D
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- DS v R, DM v R [2022] NSWCCA 156
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- 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
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54