Citation: R v Bagnato [2024] NSWSC 1674
Court: Supreme Court of New South Wales
Date: 20 December 2024
Judge: Cavanagh J
Background
In August 2014, the offender and his first cousin killed a 25-year-old man in an underground carpark at Leichhardt Marketplace. The victim died from multiple gunshot and stab wounds. The killing arose from an escalating dispute over a relatively small sum of money involving the victim's sister, her partner, and members of a local fight club to which the offender and his cousin belonged.
After the killing, the offender fled to Thailand. He was later convicted of further offences there. Australian authorities played a role in ensuring he remained in Thai custody pending extradition, and he was eventually returned to New South Wales. He was taken into NSW custody in respect of the murder in July 2022 and entered a guilty plea in December 2023.
The co-offender had been sentenced separately in 2018 (R v Carbone [2018] NSWSC 331). The offender was sentenced on the basis that both men were participants in a joint criminal enterprise to inflict grievous bodily harm on the deceased, and that the murder resulted from that enterprise.
Legal Issues
- The appropriate sentence for murder under ss 18 and 19A of the Crimes Act 1900 (NSW), with reference to the 20-year standard non-parole period
- How to sentence the offender given disputed facts about his specific role, including the standard that adverse findings require proof beyond reasonable doubt
- Whether the sentence should reflect a guilty plea discount, and at what rate
- How parity with the co-offender's sentence should be approached
- The proper treatment of time served in Thai custody, including periods attributable to Australian authorities' involvement
- Whether special circumstances existed to justify departing from the standard ratio between non-parole period and total sentence
Decision
Cavanagh J assessed the objective seriousness of the offending as significant. The murder was premeditated to a degree, involved the use of both a firearm and knives, and was carried out in a joint enterprise. Disputed facts about the offender's precise role were resolved in the offender's favour where not established beyond reasonable doubt, consistent with R v Olbrich (1999) 199 CLR 270.
The judge applied a 25% discount to the sentence for the guilty plea, arriving at a head sentence of 17 years and 3 months (reduced from a notional 23 years). Parity with the co-offender's sentence was a relevant consideration, though the court sentenced the offender on the agreed facts and its own findings as to objective seriousness and subjective circumstances, rather than simply mirroring the earlier sentence.
A significant issue was the treatment of time spent in Thai custody. The Crown accepted that the sentence should be backdated to 25 March 2022, when the offender was held in Thailand solely pending extradition. The court went further and found, on the evidence, that the offender had been held for an additional 13 months in Thailand because of the involvement of Australian authorities in preventing his release. The sentence was accordingly backdated to 25 February 2021.
On special circumstances, the court found that the combination of a lengthy period already served in custody and the psychologist's evidence about the need for rehabilitation and community reintegration justified a modest extension of the parole period beyond the statutory norm.
Orders Made
- The offender sentenced to imprisonment comprising a non-parole period of 12 years and a balance of term of 5 years and 3 months, for a total sentence of 17 years and 3 months
- Sentence backdated to 25 February 2021
- First eligible for parole: 24 February 2033
- Total sentence expires: 24 May 2038
- The offender's solicitor directed to advise the offender of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW)
Key Takeaways
- Where an offender has been held in a foreign jurisdiction and Australian authorities played a role in preventing his release pending extradition, the Supreme Court treated that additional period of foreign custody as time that should be credited against the NSW sentence through backdating.
- Sentencing in joint criminal enterprise cases requires individualised assessment: the court considered the agreed facts, made factual findings on the balance of probabilities in the offender's favour where matters were disputed, and declined to make adverse findings unless satisfied beyond reasonable doubt.
- A 25% guilty plea discount applied, reflecting that the plea was entered well after the offence but nonetheless had utilitarian value in avoiding a contested trial.
- Parity with a co-offender's earlier sentence remains a relevant sentencing consideration, though it does not override the obligation to sentence the individual offender on his own facts and circumstances.
- Special circumstances were established where the offender had already served a lengthy period in custody abroad and psychological evidence supported the need for an extended period of supervised parole to assist reintegration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Olbrich (1999) 199 CLR 270
- Bugmy v The Queen (2013) 249 CLR 571
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v The Queen (1997) 189 CLR 295
- Lloyd v R [2022] NSWCCA 18
- R v Carbone [2018] NSWSC 331
- R v Botrus (No 6) [2021] NSWSC 199
- R v Safarjalani (No 2) [2019] NSWSC 105
- R v Blanco (1999) 106 A Crim R 303
- R v Kearns (No 2) [2013] NSWSC 1652
- R v Hazairin Iskandar [2012] NSWSC 1324
- R v Willmott [2012] NSWSC 824
- R v Wilkinson (No 5) [2009] NSWSC 432