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Supreme Court 26 July 2024

R v Parkes (No 3)

[2024] NSWSC 910

Homicide
SENTENCE MURDER OFFENDER FOUND GUILTY AT TRIAL JOINT CRIMINAL ENTERPRISE NO REMORSE NO DISCOUNT FOR ASSISTANCE

Citation: R v Parkes (No 3) [2024] NSWSC 910
Court: Supreme Court of New South Wales
Date: 26 July 2024
Judge: N Adams J

Background

The offender, Benjamin Parkes, was convicted by jury of the murder of Najma Carroll, a 33-year-old woman who had struggled with heroin addiction after a troubled early adulthood. Ms Carroll met Parkes and a co-offender, Robert Sloan, at the Hunts Hotel in Casula in late June 2020, less than three weeks before her death. All three were residing in the same corridor of the hotel during the COVID-19 lockdown period.

The Crown case established, through extensive CCTV footage, telephone intercepts, surveillance recordings, witness evidence, and forensic material, that Parkes and Sloan drove Ms Carroll to remote bushland near Menai at 3:30am on 14 July 2020. The two men left without her. Her burned body and vehicle were found in that area two weeks later.

The sole issue at trial was whether Parkes participated in a joint criminal enterprise with Sloan to kill Ms Carroll, or whether he was an accessory after the fact who was taken by surprise. The jury rejected Parkes's account and returned a guilty verdict on 3 April 2024. Sloan separately pleaded guilty on the basis of joint criminal enterprise and was to be sentenced shortly after.

  • What facts could be established to the required standard for sentencing purposes, given that it was not possible to find beyond reasonable doubt which of the two men physically caused Ms Carroll's death?
  • What was the appropriate sentence for murder in circumstances of a planned joint criminal enterprise, where the offender showed no remorse and provided no assistance to authorities?
  • What weight should be given to mitigating factors including the offender's mental health, hardship in custody arising from former OMCG associations, the conditions of custody during the COVID-19 pandemic, and a reasonable prospect of rehabilitation?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Adams J found that it was not possible to determine beyond reasonable doubt which of Parkes or Sloan physically carried out the act that caused Ms Carroll's death, nor could it be established on the balance of probabilities that the co-offender Sloan did so. The court accordingly sentenced Parkes on the basis that he was a participant in a planned joint criminal enterprise to kill Ms Carroll, without attributing the physical act to either man specifically.

The court found that the murder was premeditated and motivated at least in part by Ms Carroll having reported a person known to her to police (in connection with the theft of her hire car), a fact known to Sloan and, the court was satisfied, communicated to Parkes. An additional motive was that Ms Carroll had given Parkes a substantial sum of cash withdrawn from her superannuation, and the killing eliminated any prospect of her seeking its return. The court characterised the offending as seriously aggravated by its planned nature, the vulnerability of the victim, and the complete absence of remorse.

On mitigating factors, Adams J accepted that Parkes had experienced genuine hardship in custody arising from his former OMCG associations (which required him to be managed separately from general prison population), that he had spent a significant period in custody during the COVID-19 pandemic when conditions were particularly difficult, and that he had mental health issues. However, these matters produced only a modest reduction. The court found a reasonable prospect of rehabilitation existed, and identified special circumstances warranting a slightly extended parole period beyond the standard statutory ratio, to support supervised reintegration after a lengthy sentence.

No discount was applied for assistance to authorities. The court also applied totality principles given the sentence was structured to account for the period already served from 14 August 2020, with the formal sentence commencing from 14 February 2022 to reflect time already in custody.

Orders Made

  • Parkes convicted of murder and sentenced to imprisonment for 31 years, commencing 14 February 2022 and expiring 13 February 2053.
  • Non-parole period of 21 years and 6 months, commencing 14 February 2022 and expiring 13 August 2043; eligible for parole on 13 August 2043.
  • Effective total head sentence from 14 August 2020 (accounting for time already served): 32 years and 6 months.
  • Effective non-parole period from 14 August 2020: 23 years.
  • The offender was advised of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application to him, pursuant to s 25C of that Act.

Key Takeaways

  • Where a murder is committed pursuant to a joint criminal enterprise and it is not possible to establish beyond reasonable doubt which participant physically caused the death, the sentencing court proceeds on the agreed basis of joint enterprise participation without attributing the physical act to either offender.
  • A planned murder motivated by a desire to silence a person who had reported criminal conduct to police, combined with financial motive and complete absence of remorse, places the offending at the serious end of the sentencing range for murder.
  • Hardship in custody arising from former OMCG associations, and the particular difficulties of imprisonment during the COVID-19 pandemic, are recognised as mitigating factors under New South Wales sentencing law, though their weight may be modest relative to the gravity of the offence.
  • Special circumstances justifying an extended parole period (beyond the standard statutory ratio set by the Crimes (Sentencing Procedure) Act 1999) may be found where an offender faces a lengthy head sentence and has a reasonable prospect of rehabilitation requiring structured post-release supervision.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) requires the court to notify an offender convicted of murder of the Act's existence and potential application upon sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30E(1), 30E(3), 44(2), 54B, 61(1) (standard non-parole period and sentencing procedure)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes Act 1914 (Cth), ss 18(1)(a), 20(1)(b)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- 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
- Park v R [2019] NSWCCA 105
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Isaacs (1997) 41 NSWLR 374
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54