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Court of Criminal Appeal 12 April 2002

R v Valera [2002] NSWCCA 50 revised - 17

[2002] NSWCCA 50 revised - 17

Homicide
CRIMINAL LAW LEAVE GRANTED TO APPEAL APPEAL DISMISSED.

Citation: R v Valera [2002] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judge(s): Meagher JA, Wood CJ at CL, Bell J

Background

The appellant was convicted by a jury of two counts of murder following a trial at Wollongong. The two victims were killed a fortnight apart in June 1998, and the circumstances of each killing were described by the trial judge, Studdert J, in terms of extreme violence and mutilation. The appellant had pleaded guilty to manslaughter at the commencement of trial, but those pleas were not accepted by the Crown.

Studdert J sentenced the appellant to life imprisonment on both counts. The appellant did not challenge the convictions. His application to the Court of Criminal Appeal was directed solely at the severity of the sentence imposed.

  • Whether the trial judge erred by applying a two-step sentencing process, in which the objective seriousness of the offences was assessed first and the subjective mitigating factors were considered separately and afterwards.
  • Whether life imprisonment remained appropriate after taking the appellant's subjective circumstances into account, including his youth (under 20 at the time), a history of severe domestic violence in childhood, his surrender to police and cooperation, and the absence of prior convictions.

Decision

The Court unanimously dismissed the appeal, with leave granted.

The central challenge concerned the two-step approach to sentencing. The trial judge first assessed the objective gravity of each murder and concluded that life imprisonment was warranted. He then considered subjective factors in mitigation but found none sufficient to reduce the sentence. Counsel for the appellant argued that this sequential process was incorrect, and that the proper approach was what Street CJ had described in Bell v R as an "instinctive synthesis" of all relevant factors together.

Meagher JA, with Wood CJ at CL and Bell J agreeing, rejected that argument. His Honour identified a consistent line of authority in the Court of Criminal Appeal requiring the two-step method, tracing it from Bell v R (1985) through Garforth, Twala, Fernando, and most recently Harris (2000), where the High Court had refused special leave to appeal. Street CJ's "instinctive synthesis" approach, by contrast, appeared only in a dissenting judgment in Bell.

Meagher JA observed that, in any event, the distinction between the two approaches was largely semantic. Provided all relevant factors are taken into account, the order in which they are considered will not change the outcome. Wood CJ at CL added that he was unpersuaded any alternative approach would have produced lesser sentences on the facts, and he expressly declined to engage with the suggestion that the facts might have warranted something more severe than life imprisonment.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the two-step sentencing approach, first assessing the objective gravity of an offence and then turning to subjective mitigating factors, is correct and consistently supported by authority in New South Wales.
  • Street CJ's "instinctive synthesis" formulation from Bell v R (1985) reflects a dissenting view only, and does not represent the settled approach required of sentencing judges in NSW.
  • A submission based on the distinction between the two-step method and instinctive synthesis was characterised as "largely semantic": where all relevant factors are considered, the sequence in which they are addressed will not alter the result.
  • Subjective circumstances including youth, a traumatic upbringing, voluntary surrender, cooperation with police, and the absence of prior convictions did not, on the facts here, displace a life sentence for two murders of exceptional objective seriousness.
  • The High Court's refusal of special leave in Harris v The Queen reinforced the correctness of the two-step approach as it had been applied by the sentencing court.

Legislation and Cases Referenced

Cases:
- Bell v R (1985) 2 NSWLR 466
- Garforth (unreported, NSW Court of Criminal Appeal, 23 May 1994)
- Twala (unreported, NSW Court of Criminal Appeal, 4 November 1994)
- Fernando [1999] NSWCCA 66
- Harris (2000) 50 NSWLR 409

Legislation: No specific legislation cited in the judgment text.