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Supreme Court 2 August 2024

R v Sloan

[2024] NSWSC 952

HomicideDrugs
SENTENCE MURDER GUILTY PLEA JOINT CRIMINAL ENTERPRISE DISCOUNT FOR ASSISTANCE LENGTHY CRIMINAL HISTORY

Citation: R v Sloan [2024] NSWSC 952
Court: Supreme Court of New South Wales
Date: 2 August 2024
Judge(s): N Adams J

Background

Robert Sloan pleaded guilty to the murder of Najma Carroll, a 33-year-old woman whose burnt body was discovered in bushland near Menai on 29 July 2020. She had been killed approximately two weeks earlier, in the early hours of 14 July 2020. Sloan and his co-offender, Benjamin Parkes, had both resided at the same hotel as Carroll for only a few weeks before her death. All three were connected through the drug trade operating out of Hunts Hotel in Casula during the early months of the COVID-19 pandemic.

The prosecution established that Carroll was killed pursuant to a joint criminal enterprise between Sloan and Parkes. However, it could not be determined, either beyond reasonable doubt or on the balance of probabilities, whether it was Sloan, Parkes, or both who physically caused her death. Carroll had invested $8,000 of her superannuation savings in Parkes's drug supply business and had assisted both men in drug distribution activities prior to her murder.

Parkes, who was tried separately by jury and convicted in April 2024, was the dominant figure in the relationship. Witnesses described Sloan as Parkes's "runner," with Parkes directing Sloan's activities and paying for his hotel room. Sloan entered his guilty plea on 29 January 2024, one week before the scheduled joint trial date.

  • What sentence is appropriate for murder committed pursuant to a joint criminal enterprise, where it cannot be determined which offender performed the physical act causing death?
  • What discount applies to the late guilty plea entered within the relevant statutory timeframe but not 14 days before trial?
  • How should Sloan's sentence reflect his lesser role compared to co-offender Parkes, including differences in motive, decision-making, and subjective circumstances?
  • How should parity between Sloan and Parkes's sentences be maintained?
  • What weight should be given to Sloan's subjective case, including his lengthy criminal history, Bugmy factors (the relevance of social disadvantage to moral culpability), hardship in custody including inmate attacks, health concerns, and the conditions of COVID-19 custody?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence.

Decision

Adams J sentenced Sloan on the basis that he was liable for Carroll's murder as a party to a joint criminal enterprise, regardless of who delivered the fatal blows. The court could not make a finding adverse to Sloan on the question of physical causation, and proceeded accordingly. The agreed facts established that Parkes was the dominant party in the enterprise, with Sloan occupying a subordinate role as a follower and runner rather than an instigator or decision-maker.

A 10% discount was applied for the guilty plea under s 25D(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Although the plea was not entered 14 days before trial, it was made and accepted within the relevant statutory period. The court fixed a notional pre-discount head sentence of 28 years' imprisonment, reducing it to 25 years and 2 months after applying the discount and rounding down slightly.

The court found Sloan's criminality to be lower than Parkes's, citing his subordinate role in the motive for and decision-making around the murder, and a stronger subjective case. No finding of remorse could be made on the evidence. The court took into account Sloan's lengthy criminal history, his social disadvantage under the Bugmy principle, inmate attacks suffered in custody, the hardships of custody during the COVID-19 pandemic, and ongoing mental and physical health concerns. Special circumstances were found, justifying a non-parole period below the statutory default proportion.

Parity with Parkes's sentence was considered throughout. The lesser sentence imposed on Sloan reflected his comparatively lower culpability in the enterprise, particularly regarding the genesis of the plan to kill Carroll and the exercise of control, rather than any difference in the gravity of the offence itself.

Orders Made

  • Sloan convicted of murder and sentenced to imprisonment for 25 years and 2 months, commencing 4 May 2022 and concluding 3 July 2047.
  • Non-parole period of 17 years and 6 months, commencing 4 May 2022 and concluding 3 November 2039 (the earliest eligible parole date).
  • The effective total head sentence, including time served since 4 November 2020, is 26 years and 8 months; the effective non-parole period is 19 years.
  • Sloan was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), s 25C, and his legal representatives were requested to advise him of its implications.

Key Takeaways

  • Where a murder is committed pursuant to a joint criminal enterprise and it cannot be determined beyond reasonable doubt (or on the balance of probabilities) which offender performed the physical act causing death, the sentencing court proceeds on the basis of the agreed joint enterprise without making a finding adverse to the offender on that unresolved question.
  • A guilty plea entered within the statutory timeframe under s 25D(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) attracted a 10% discount, even though it was not entered 14 days before the scheduled trial date.
  • A subordinate role in the decision-making and motivational aspects of a joint criminal enterprise can justify a lesser sentence than that imposed on a co-offender, even where both parties bear equal legal liability for the murder.
  • Under the Bugmy principle, evidence of entrenched social disadvantage remains relevant to the assessment of moral culpability at sentencing, even for serious offences and offenders with lengthy criminal histories.
  • Hardship in custody, including inmate assaults, the conditions of COVID-19 detention, and ongoing mental and physical health concerns, were treated as mitigating factors, contributing to the finding of special circumstances and an adjusted non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(3)(b), 30E, 44(2), 54B

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Harris v R [2023] NSWCCA 44
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Paterson v R [2021] NSWCCA 273
- R v Millwood [2012] NSWCCA 2
- R v MJ [2023] NSWCCA 306
- R v Parkes (No 3) [2024] NSWSC 910
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54