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Court of Criminal Appeal 23 February 2001

R v AM [2001] NSWCCA 80 revised - 12

[2001] NSWCCA 80

Assault & violenceHomicide

Citation: R v AM [2001] NSWCCA 80 revised - 12/09/2001
Court: NSW Court of Criminal Appeal
Date: 23 February 2001
Judge(s): Simpson J; Grove J

Background

The applicant pleaded guilty in the District Court to causing grievous bodily harm with intent to murder (as a principal in the second degree) and using an offensive weapon to commit assault. The offences arose from a premeditated, paid attack carried out in the early hours of 18 December 1997 at the rural home of a married couple and their two young children. The applicant was recruited by a co-offender and promised $10,000 to participate, knowing the purpose was to murder the male victim.

Three offenders, including the applicant, entered the home together. The applicant's designated role was to subdue the wife while the other two attacked her husband. The husband suffered near-fatal injuries, including a nearly severed trachea, multiple stab wounds, and a fractured eye socket. The wife was punched, kicked, and had a cable tie tightened around her throat. Both children witnessed parts of the attack.

Judge Coleman in the District Court sentenced the applicant on the first charge to a total term of eleven years and eight months, comprising a minimum term of seven years and an additional term of four years and eight months. A concurrent sentence of six years applied to the second charge. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge gave adequate weight to the applicant's lesser role as a principal in the second degree compared to the co-offenders who physically attacked the male victim.
  • Whether the applicant's early plea of guilty and his cooperation with police, which the sentencing judge accepted had a "snowballing effect" on the co-offenders, warranted a greater sentencing discount than that applied.
  • Whether the applicant's act of removing the couple's daughter from the room during the attack should have reduced his sentence further.

Decision

Simpson J (Grove J agreeing) granted leave to appeal but dismissed the appeal, finding no error in Judge Coleman's sentencing approach.

On the question of relative culpability, the Court accepted that the applicant's role in the attack on the husband was less direct than that of Broderick and Polverino, and the sentencing judge had recognised this by adopting a lower starting point of eighteen years (compared to twenty years for the other two) before applying the assistance discount. However, the Court was not persuaded that the differential was inadequate. The applicant's entire purpose was to enable the co-offenders to carry out the murder, and his deliberate actions were designed to facilitate that outcome.

On the plea and assistance discount, the sentencing judge applied a thirty-five per cent reduction to all three offenders, identical in magnitude. The Court found little, if anything, to distinguish the three in terms of the quality of their pleas or their cooperation, and concluded that the applicant's plea and assistance being first in time did not justify a larger discount.

The Court also rejected the submission that removing the daughter from the room warranted further mitigation, finding this did not entitle the applicant to any greater reduction than that afforded to the co-offenders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A participant in a joint criminal enterprise who does not personally inflict the most serious injuries may nonetheless be sentenced on the basis that their actions were deliberately designed to enable co-offenders to carry out the offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing differential between co-offenders (reflected through a lower starting point) can provide sufficient recognition of a lesser role, even where the discount for assistance and pleas of guilty is applied uniformly.
  • The sequence in which co-offenders offer pleas and assistance does not automatically entitle the first to cooperate to a larger discount, particularly where the cooperation and plea quality of all offenders is assessed as broadly equivalent.
  • No error was established in the sentencing judge's treatment of the applicant's act of removing a child from the scene, which the Court did not regard as warranting additional mitigation.
  • Where offences fall within the worst category of their kind, the subjective circumstances of co-offenders being of otherwise good character and acting out of character will not, of themselves, produce meaningfully different outcomes between those co-offenders.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 5(3)
- Crimes Act 1900 (NSW)

Cases:
- R v Lowe (1984) 154 CLR 606
- R v Postiglioni (1997) 189 CLR 295