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Supreme Court 15 December 2004

Regina v ASLETT

[2004] NSWSC 1228

Sexual offencesAssault & violenceHomicideTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING MURDER AGGRAVATED SEXUAL ASSAULT IN COMPANY SPECIALLY AGGRAVATED ROBBERY AGGRAVATED CAR JACKING

Citation: Regina v ASLETT [2004] NSWSC 1228
Court: Supreme Court of New South Wales, Common Law Division
Date: 15 December 2004
Judge(s): Wood CJ at CL

Background

The prisoner, a 33-year-old man, was sentenced across four indictments for 19 counts of serious criminal offending committed over a period of roughly three and a half months between 3 May and 20 August 2003. The offences included murder, two counts of aggravated sexual assault in company, multiple armed robberies, specially aggravated kidnapping, aggravated car jacking, attempting to obtain money by deception, and motor vehicle larceny. Nine additional offences were taken into account on Form 1 documents.

The conduct began with the prisoner and an accomplice ambushing a woman in a car park at night, forcing her into her own vehicle at gunpoint and knifepoint, driving her to another location, and there committing two acts of aggravated sexual assault in company, robbing her, and detaining her to extract her bank PIN. This sequence of events involving the first victim was among the most serious matters before the court.

In addition to the offences on the indictments before Wood CJ at CL, the prisoner had been separately convicted after a jury trial before Judge Finnane DCJ of further serious offences (including a murder), for which he had effectively received a non-parole period of 30 years and a balance of parole of 10 years. That separate sentencing formed a significant part of the factual backdrop against which the current sentencing was conducted.

  • Whether a life sentence was warranted for the murder count, having regard to the prisoner's overall criminality, dangerousness, and the requirements of the Crimes (Sentencing Procedure) Act 1999
  • How the principle of totality should apply when structuring sentences across multiple indictments and a large number of individual counts
  • What weight should be given to standard non-parole periods under Division 1A for the offences of murder, aggravated sexual assault in company, and aggravated car jacking
  • How drug use and other personal circumstances bore on the sentencing exercise
  • Whether the prisoner's prior record and continuing pattern of serious offending supported a finding of dangerousness to the community
  • How to treat the separate sentences already imposed by Judge Finnane DCJ when constructing the overall sentencing structure

Decision

Wood CJ at CL imposed a life sentence for the murder count. The court concluded that the totality of the prisoner's criminality, viewed alongside the separate conviction for murder before Judge Finnane DCJ, demonstrated an exceptional level of dangerousness to the community. The pattern of violent, predatory offending sustained over several months, often involving multiple victims and co-offenders, was central to this assessment.

The determinate sentences imposed across the remaining counts were structured with non-parole periods and balance of term components, even though those sentences would ultimately be absorbed into the life sentence for murder. The court took this approach because the individual sentences reflected the gravity of each category of offending and formed part of the express reasoning for imposing the life sentence.

The effective overall structure for the determinate sentences (leaving aside the life sentence) produced a non-parole period of 28 years commencing 22 August 2008 and expiring 21 August 2036, with a balance of term of 8 years expiring 21 August 2044. These periods were wholly absorbed by the life sentence. The court observed that the sentencing exercise was complicated by the prospect of appeal against the separate Finnane DCJ convictions, noting that a successful appeal and acquittal on retrial might give rise to grounds to seek review of the life sentence.

Wood CJ at CL expressed the view, consistent with his earlier remarks in Regina v Harris, that retaining a judicial capacity to set a lengthy specified non-parole period for murder would have been far preferable in a case involving a 33-year-old offender, given the severity of a life sentence carrying no prospect of release and no incentive for rehabilitation. This observation was offered as a commentary on the sentencing framework rather than as a basis for departing from the statutory scheme.

Orders Made

• Counts 8 and 9 (Steal Motor Vehicle): Fixed terms of imprisonment of 2 years commencing 22 August 2029 and expiring 21 August 2031, wholly concurrent with the sentence for Count 7

• Overall sentence: Non-parole period of 10 years commencing 22 August 2026 and expiring 21 August 2036, with a balance of parole of 8 years expiring 21 August 2044

Key Takeaways

  • A life sentence for murder was imposed where the prisoner's overall course of violent and predatory offending across multiple indictments, combined with a separately imposed sentence for a further murder, demonstrated an extreme level of danger to the community.
  • Under the Crimes (Sentencing Procedure) Act 1999, the sentencing court may nonetheless formulate structured determinate sentences for accompanying counts even where those sentences will be wholly absorbed by a life sentence, as those individual sentences form part of the reasoning justifying the life term.
  • The principle of totality required the court to assess the prisoner's overall criminality, including offences already the subject of separate sentencing by another judge, when determining the appropriate head sentence for murder.
  • Where a prisoner's convictions in related proceedings remain subject to appeal, the sentencing court may flag that a successful appeal on those convictions could provide a basis for seeking review of a life sentence imposed in part by reference to that separate criminality.
  • Wood CJ at CL reiterated the concern expressed in Regina v Harris that the absence of a judicial power to specify a non-parole period for murder produces particularly harsh outcomes for younger offenders, though the court applied the existing statutory framework without modification.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW): ss 18, 61JA(1)(c)(ii), 86(3), 97(2), 154C(2), 154A, 117, 178BA, 344A
  • Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 21A, 44, 61
  • Criminal Procedure Act 1986 (NSW): s 128(2)

Cases Cited

  • Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
  • Johnson v The Queen [2004] HCA 15
  • Mill v The Queen (1988) 166 CLR 59
  • Pearce v The Queen (1998) 194 CLR 610
  • Veen v The Queen (No 2) (1988) 164 CLR 465
  • R v AEM & Ors (2002) NSWCCA 58
  • R v Fernando (1992) 76 A Crim R 58
  • R v Harris (2000) 50 NSWLR 409
  • R v Henry (1999) 46 NSWLR 346
  • R v Thomson and Houlten (2000) 49 NSWLR 383
  • R v Way [2004] NSWCCA 131
  • Various other NSWCCA decisions as listed in the judgment metadata