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Supreme Court 19 December 2024

R v Rajapakse (No 3)

[2024] NSWSC 1642

Assault & violenceHomicideDrugs
CRIME MURDER SENTENCING FOLLOWING TRIAL NO FINDING OF REMORSE POOR PROSPECTS OF REHABILITATION FOUND APPLICATION OF BUGMY PRINCIPLES

Citation: R v Rajapakse (No 3) [2024] NSWSC 1642
Court: Supreme Court of New South Wales
Date: 19 December 2024
Judge: Chen J

Background

The offender was convicted by jury on 17 September 2024 of the murder of a 26-year-old man, who was fatally stabbed outside a residential premises at Watanobbi at around 11:20 pm on 25 October 2020. The fatal wound was inflicted with a flick knife to the deceased's armpit. The offender had attended the premises after being contacted, through mutual associates, by a drug supplier seeking to recover methylamphetamine that the deceased and his friends had stolen in a "drug rip" earlier that evening.

The Crown and the offender agreed on four key facts flowing from the jury's verdict: the offender inflicted the fatal wound; he did so with intent to cause grievous bodily harm (rather than with intent to kill); the stabbing was not done in self-defence; and the offender did not intend to rob the deceased at the time of the stabbing. Both parties also agreed the offence was unplanned.

This judgment dealt with sentencing following the trial. The court was required to resolve contested facts before determining the appropriate sentence, and also had to address the interaction between the murder sentence and a pre-existing sentence the offender was serving for a separate reckless wounding offence.

  • What findings of fact, consistent with the jury's verdict, should the court make on the contested aspects of the offending circumstances, including whether the deceased was armed and whether a physical altercation preceded the stabbing?
  • What weight should be given to the agreed characterisation of the offence as unplanned and involving an intent to cause grievous bodily harm rather than an intent to kill?
  • Whether the offender demonstrated remorse, and what prospects of rehabilitation existed.
  • How the Bugmy principles (concerning the relevance of deprived background to moral culpability) applied on the facts.
  • How the principle of totality should operate given the offender was already serving a sentence for a separate reckless wounding offence, and what commencement date should apply to the murder sentence.

Decision

Chen J resolved the contested factual matters and made findings consistent with the jury's verdict. The court did not accept that the deceased had initiated the altercation or that he was armed with a knife in a manner that materially affected the assessment of the offender's culpability. The court found no remorse on the offender's part and identified poor prospects of rehabilitation.

On the nature of the offending, the court treated the agreed characterisation, that the offence was unplanned and involved an intent to cause grievous bodily harm rather than an intent to kill, as relevant to the assessment of objective seriousness and moral culpability. The context, recovering drugs stolen in a brazen theft from a drug supplier, was nonetheless a serious one.

The court applied the Bugmy principles, which recognise that an offender's deprived background can bear on the assessment of moral culpability. However, given the findings on remorse and rehabilitation prospects, these principles did not substantially reduce the sentence imposed.

On totality, the court considered how the murder sentence should sit alongside the existing reckless wounding sentence. Because the two offences were separate and distinct in time, the court found that the sentence for one could not comprehend the criminality of the other. A modest adjustment was applied by backdating the commencement of the murder sentence to 15 July 2021, rather than the approximate date of 15 September 2021 proposed by the parties.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • A sentence of imprisonment was imposed with a non-parole period of 18 years commencing 15 July 2021, and a head sentence of 24 years.
  • Parole eligibility date: 14 July 2039.
  • Sentence expiry date: 14 July 2045.
  • The offender was notified, pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that that Act applies to him and to this offence.

Key Takeaways

  • The Supreme Court confirmed that, when sentencing after trial, adverse factual findings must be established beyond reasonable doubt, while facts asserted in the offender's favour must be proved on the balance of probabilities, following the principles in Olbrich and Filippou.
  • An agreed characterisation of the offending, here that the murder involved intent to cause grievous bodily harm rather than intent to kill, and that it was unplanned, remains a relevant factor in assessing objective seriousness at sentencing, even where the offending context is otherwise serious.
  • The Bugmy principles were applied, recognising that a deprived background is relevant to the assessment of moral culpability, though on the facts of this case that consideration did not substantially moderate the sentence.
  • No remorse was found, and poor prospects of rehabilitation were identified, both of which bore on the sentence structure.
  • Under the totality principle, where two offences are separate and distinct in time and one sentence cannot comprehend the criminality of the other, the sentencing court may make a modest adjustment to the commencement date of the later sentence rather than ordering full concurrence or full accumulation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Dorsett v R [2024] NSWCCA 192
- Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Isaacs (1997) 41 NSWLR 374
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Various other NSW Court of Criminal Appeal decisions cited in the judgment