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61
Court of Criminal Appeal 23 April 2004

Regina v M A [2004] NSWCCA 92 revised - 23

[2004] NSWCCA 92

Also reported as (2004) 145 A Crim R 434
HomicideFirearms & weapons
CRIMINAL LAW SENTENCING MURDER CROWN APPEAL

Citation: Regina v M A [2004] NSWCCA 92 revised – 23/04/2004; reported at 145 A Crim R 434
Court: New South Wales Court of Criminal Appeal
Date: 23 April 2004
Judge(s): Studdert J, James J, Dunford J (judgment delivered by Dunford J, with whom the others agreed)

Background

The respondent pleaded guilty to the murder of an 18-year-old man at Hurlstone Park on Anzac Day 2001. The victim and a friend were walking home late at night when the respondent and his co-offender pulled over their car and confronted them following a brief altercation. After the victim threw a punch, the respondent produced a firearm and shot him from approximately two metres away. The victim died of a gunshot wound to the chest in the early hours of the following morning.

The respondent was 17 years and 3 months old at the time of the offence and had no prior criminal convictions. He initially denied involvement, telling police that his co-offender had fired the shot. His admissions of responsibility came later, through covertly recorded conversations with an undercover officer and statements made to friends, and were not openly acknowledged to investigators.

At first instance, Shaw J sentenced the respondent to 13 years and 6 months imprisonment with a non-parole period of 8 years and 6 months. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending that the sentence was manifestly inadequate and that the sentencing judge had made a series of errors.

  • Whether the sentencing judge erred in characterising the offence as involving reckless indifference to human life, rather than an intent to kill or cause grievous bodily harm
  • Whether the sentencing judge gave insufficient weight to the objective gravity of the offence, including the carrying and use of a firearm in a public place
  • Whether excessive weight was given to the respondent's youth and the absence of premeditation
  • Whether the discount allowed for the guilty plea (approximately 25 percent) was excessive given the circumstances in which the plea was entered
  • Whether the resulting sentence was manifestly inadequate

Decision

Dunford J identified several errors in the approach taken by Shaw J. The evidence, including the respondent's own recorded admission that he had aimed at the deceased's head, supported a finding of intent to kill or at least cause grievous bodily harm. The characterisation of the offence as involving only reckless indifference understated the seriousness of the conduct and was not supported by the facts.

The Court also found that the sentencing judge placed too much weight on mitigating factors. While the respondent's youth and the absence of formal premeditation were relevant, the offence involved the deliberate carrying of a loaded firearm, the pursuit of a confrontation, and the calm departure from the scene immediately after the shooting. These circumstances significantly aggravated the objective seriousness of the offence.

On the plea discount, the Court held that the approximately 25 percent reduction was excessive. The respondent had initially denied involvement entirely and had maintained a false account to police. Any remorse or contrition appeared only after the plea had been entered. The Court assessed a discount of around 15 percent as appropriate in the circumstances.

Satisfied that multiple errors had infected the sentencing exercise and that the resulting sentence was manifestly inadequate, the Court re-sentenced the respondent. In doing so, it applied the principle that, on a Crown appeal, a court imposes a sentence somewhat lower than what it would otherwise regard as correct at first instance, to account for the element of double jeopardy arising from the respondent being sentenced twice.

Orders Made

  • Crown appeal allowed
  • Original sentence quashed
  • Respondent re-sentenced to 16 years imprisonment, deemed to have commenced 18 April 2002 and expiring 17 April 2018
  • Non-parole period fixed at 11 years, expiring 17 April 2013
  • Order confirmed that the respondent serve the sentence in a children's detention facility until he turns 21 years of age

Key Takeaways

  • A guilty plea discount of around 25 percent was held to be excessive where the offender had initially denied all involvement, maintained a false account to police, and demonstrated contrition only after entering the plea; the Court of Criminal Appeal assessed approximately 15 percent as appropriate in those circumstances.
  • Where evidence, including the offender's own recorded admissions, indicated an intent to kill, a sentencing court's characterisation of the offence as involving only reckless indifference to human life constitutes an error affecting the entire sentencing exercise.
  • Carrying a loaded firearm in a public place and using it following a minor confrontation represents a significant aggravating factor that must be given substantial weight, even where there is no evidence of formal planning in advance of the encounter.
  • On a Crown appeal resulting in re-sentencing, the Court of Criminal Appeal applies the double jeopardy principle by imposing a sentence at the lower end of what it considers appropriate, reflecting the burden on the offender of being sentenced twice for the same offence.
  • Youth at the time of the offence remains a relevant mitigating consideration, but it does not displace the need for sentences that give proper weight to denunciation and general deterrence in cases of deliberate, armed violence resulting in death.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987, s 3
- Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A
- Criminal Appeal Act 1912, s 5D

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Crabbe v The Queen 156 CLR 464
- Dinsdale v The Queen [2000] HCA, 202 CLR 321
- Power v The Queen (1973) 131 CLR 623
- R v AEM Snr and Ors [2002] NSWCCA 58
- R v Allpass (1993) 72 A Crim R 561
- R v Giam (No 2) [1999] NSWCCA 378, 109 A Crim R 348
- R v Gordon (1994) 71 A Crim R 459
- R v Hearne [2001] NSWCCA 37, 124 A Crim R 451
- R v Jenkins [1999] NSWCCA 110
- R v Kalache [2000] NSWCCA, 111 A Crim R 152
- R v Lattouf (CCA, 12 December 1996)
- R v Nichols (1991) 57 A Crim R 391
- R v Nguyen (CCA, 14 April 1994)
- R v Pham (1991) 55 A Crim R 128
- R v Rose (unreported, CCA, 23 May 1996)
- R v Simpson (2001) NSWCCA 534, 53 NSWLR 704
- R v Thomson [2000] NSWCCA 309, 49 NSWLR 383
- R v Tran [1999] NSWCCA 109
- Veen v The Queen (No 2) (1988) 164 CLR 465