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Court of Criminal Appeal 11 November 2024

Bidner v R

[2024] NSWCCA 204

Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE MURDER WHETHER SENTENCING JUDGE ERRED APPEALS

Citation: Bidner v R [2024] NSWCCA 204
Court: Court of Criminal Appeal, NSW
Date: 11 November 2024
Judges: Harrison CJ at CL (principal judgment); Davies J and Rigg J (agreeing)

Background

The appellant pleaded guilty to murder on the second day of his trial after his intended defence was undermined by his own expert's collision reconstruction report. The victim and the appellant were known to each other through a hostile relationship that had developed after the appellant seriously assaulted the victim's friend in 2019. On the afternoon of 5 July 2020, both men were independently foraging for scrap metal at a waste management compound in Cessnock.

The forensic evidence established that the appellant reversed his Toyota Landcruiser into and over the victim, who had his back turned to the vehicle at the time of impact. There was no evidence of braking, but evidence consistent with acceleration. The appellant drove away without rendering aid and was later arrested while cleaning the vehicle, having already disposed of its distinctive tyres.

Wilson J sentenced the appellant in the Supreme Court to 24 years and 8 months imprisonment with a non-parole period of 18 years. The appellant sought leave to appeal on three grounds, each challenging factual findings made by the sentencing judge.

  • Whether the sentencing judge erred in finding that the appellant intended to kill the victim, rather than merely intending to inflict grievous bodily harm.
  • Whether the sentencing judge erred in finding that the appellant attacked the victim without warning.
  • Whether the sentencing judge erred in declining to find that the appellant's background, including consequential drug use, played a causal role in the commission of the offence.

Decision

Intention to kill: The Court held that a finding of intention to kill was clearly open on the evidence. The sentencing judge had found, without contest, that the appellant deliberately drove his Landcruiser into the victim and then over him. The vehicle exerted a gravitational force of approximately 500kg per wheel even when stationary, and the appellant was aware his vehicle was passing over the victim as he lay on the ground. The Court reasoned that any conclusion about a disputed intention necessarily depends on inferences drawn from the evidence, and those inferences here supported an intention to kill.

Attack without warning: The victim was facing away from the vehicle at the time of impact, which the Court found made it uncontroversial that the sentencing judge's reference to an "attack without warning" meant the victim had no foreknowledge of what was about to occur. There was no evidence of any words exchanged, any warning shouted, or any other interaction between the two men before the incident. The finding was open on the evidence as it stood.

Background disadvantage and drug use: The sentencing judge had assessed the appellant's account of a dysfunctional upbringing and drug use as either unsupported or contradicted by other evidence. The Court noted that the judge gave detailed reasons for doubting the appellant's self-reporting, including inconsistencies about when he entered his guilty plea and concerns about the genuineness of his expressed remorse. Because the causal connection between background and offending depended on acceptance of the underlying evidence, and the judge was entitled to reject that evidence, the decline to find a causal link was also open.

The appeal was dismissed on all three grounds.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of intention to kill, rather than intention to inflict grievous bodily harm, is a matter of inference from all available evidence, and where the physical facts plainly support the higher finding, an appellate court will not disturb it.
  • The Court of Criminal Appeal confirmed that a sentencing judge's finding of an "attack without warning" can properly rest on an absence of evidence, rather than requiring affirmative proof that no warning occurred, where the circumstances make the inference available.
  • Where an offender's account of background disadvantage and drug use is contradicted or cast in doubt by other evidence, the sentencing judge is not required to accept it, and may decline to find a causal connection between that background and the offence.
  • In dismissing the appeal, the Court reinforced that findings about disputed subjective factors at sentencing are evaluated on an "open on the evidence" standard, not whether the appellate court would have drawn the same inferences.
  • The principle in Bugmy v The Queen (2013) 249 CLR 571, that background disadvantage can be a mitigating factor, does not operate automatically: the underlying facts relied upon to establish that disadvantage must themselves be accepted by the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedures) Act 1999 (NSW), ss 3A, 21A, 25D

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Davies v R [2019] VSCA 66
- Lawrence v R [2023] NSWCCA 110
- Massaquoi v R [2024] NSWCCA 125
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- Newman v R [2021] NSWCCA 101
- Ocek v R [2023] NSWCCA 308
- R v Bidner (Sentence) [2023] NSWSC 880
- R v O'Donoghue (1988) 34 A Crim R 397