Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: KR v R [2012] NSWCCA 32
• Hearing dates: 17 August 2011
• Decision date: 14 March 2012
• Before: Whealy JA; Latham J; Harrison J

Decision

Leave to appeal granted

Appeal dismissed

• Catchwords: CRIMINAL LAW - Appeal against sentence - murder (Crimes Act 1900 (NSW) s18(1)(a)) - assault with intent to rob in company (Crimes Act 1900 (NSW) s97(1)) - principle of parity - distinction between criminal responsibility and moral culpability - parity principle not engaged - whether the allocation of a discount for plea of guilty by the trial judge constituted a denial of procedural fairness - applicant afforded opportunity to make submissions - appeal dismissed.
• Legislation Cited: Crimes Act 1900
• Cases Cited: R v LR [2010] NSWSC 22; R v Wright [2009] NSWCCA 3; R v JW [2010] NSWCCA 49; R v Sukkar [2011] NSWCCA 140; R v O'Connor [1980] HCA 17; 146 CLR 64; R v Merritt [2004] NSWCCA 19; R v Henry & Ors. [1999] NSWCCA 111; 46 NSWLR 346 ; 106 A Crim R 149; Postiglione v R [1997] HCA 26 ; 189 CLR 295; Green v The Queen ; Quinn v The Queen [2011] HCA 49; Trujillo-Mesa v R [2010] NSWCCA 201; R v Borkowski [2009] NSWCCA 102
• Category: Principal judgment
• Parties: KR - Applicant; Regina - Crown Respondent
• Representation: COUNSEL; H Dhanji SC/I McLachlan - (Applicant); N Noman - (Crown Respondent); SOLICITORS; Legal Aid NSW - (Applicant); Solicitor for Public Prosecution) - (Crown Respondent)
• File Number(s): 2009/7539

Decision under appeal

• Date of Decision: 2010-03-19 00:00:00
• Before: Howie J
• File Number(s): 2009/7539

Judgment

1 WHEALY JA : I agree with Latham J.

2 LATHAM J : This is an application for leave to appeal against sentences imposed following pleas of guilty to one count of Murder and two counts of Assault with Intent to Rob in Company (s 97(1) Crimes Act 1900). Murder carries a maximum penalty of life imprisonment. The robbery offences each carry a maximum penalty of 20 years imprisonment.

3 Fixed terms of 12 months and 6 months imprisonment were imposed in respect of the robbery offences. A non parole period of 12 years with a balance of term of 6 years and 9 months was imposed on the murder count. The total sentence of imprisonment was 19 years and 6 months, including a non parole period of 12 years and 9 months.

4 The sentence imposed by the same judge (Howie J) on the co-offender (LR) for Murder and one count of Assault with Intent to Rob in Company is said to give rise to a justifiable sense of grievance on the part of the applicant (Ground 1). It is further claimed that the applicant was denied procedural fairness by virtue of the judge's revision of the discount for the pleas of guilty from 20% to 15% without hearing further from the applicant (Ground 2).

The Offences

5 Shortly after 11 pm on 13 June 2008, the applicant (then aged 17 years and two months) and his friend LR (then aged 16 years and 7 months) decided to rob someone. Both offenders were intoxicated.

6 Shortly after midnight on 14 June 2008, a 31-year-old man was found dead in the driveway of his home by his flatmate. His wallet was found in the driveway and was empty of cash. DNA in the wallet matched the applicant's DNA. The deceased's keys were found a short distance away but his mobile phone was missing. The offenders had stomped on his head and face a number of times. Shoe patterns were found on his skull, face and neck. His ribs were fractured. In effect, the deceased had been kicked to death.

7 Between 11:45 pm and 12 am a 20-year-old male was riding his bicycle when he was knocked off and robbed by the offenders. This offence is the subject of the assault with intent to rob in company offence, with which both were charged.

8 At about 11:55 pm the offenders encountered a 26-year-old female. The applicant hit her to the back of the head, demanded her wallet and then punched her twice to the face and kicked her in the cheek area. This was the subject of the second assault with intent to rob in company offence, with which the applicant alone was charged. There was no satisfactory explanation before the judge as to why LR was not charged with this offence.

9 The relevant findings of fact by the judge for the purposes of sentencing the applicant on the murder charge appear from the remarks on sentence delivered on 19 March 2010. It is helpful to set parts of the remarks out in full ([10] - [16]), particularly for the purposes of the parity ground.

The facts stated that both LR and the offender acted jointly to cause the death of the deceased and did so with the intention that grievous bodily harm would be inflicted upon him. It is also stated that both offenders participated in the infliction of grievous bodily harm upon the deceased.

A clear inference from the facts is that the offender inflicted at least some of the identifiable shoe prints upon the deceased's head. However the facts in relation to the robbery of Ms Gay state that, where LR had been seen by the victim to be standing at the time she was robbed by the offender, a shoe print similar to those identified upon the deceased's head was found. It was put to me that I should find that this print was left by LR and, therefore, I should conclude that he was responsible for the infliction of injuries to the head of the deceased.

No shoes were recovered from LR that bore that shoe print yet two pairs of shoes obtained from the offender did. There is nothing to suggest that the police would not have taken all the shoes LR had in his possession. It is highly likely that the print recovered from where LR had been standing was also made by the offender at some time around the robbery of Ms Gay. I am satisfied beyond reasonable doubt that the offender inflicted the shoe prints found upon the deceased's head. However, I am not satisfied beyond reasonable doubt that he alone was responsible for the injuries inflicted to the head and face of the deceased. For the purpose of sentencing the offender I am satisfied that both offenders were equally responsible for the death of the deceased. (italics not in original)

I understand that there is an inconsistency in the facts upon which I sentence the two offenders in relation to the murder, but that is the result of the different evidence before me. This has been brought about to a large degree because I could not sentence the offenders together. This was a result of this offender sacking his barrister and then contemplating whether to withdraw his pleas of guilty. I was not prepared to delay sentencing LR while there was uncertainty as to whether this offender would maintain his pleas of guilty.

It is also a result of the decision of the offender not to give evidence before me. He is not treated more harshly simply because he did not give evidence. But I have no account from him to explain the circumstances in which the killing took place. Although I have always had doubts about the honesty of the account given by LR, it was not challenged by the Crown and was not inconsistent with the agreed facts.

Counsel for the offender tried valiantly to maintain that I should impose the same sentence upon both offenders according to the principle of parity. But because the factual basis upon which I sentenced LR is different to the factual basis upon which I sentence this offender, there must be disparity in the sentences imposed. If I impose the same sentence on this offender as I did on LR, then LR would have grounds to complain that he was unfairly treated having regard to the mitigating facts found in his favour.

As I stated when sentencing LR this was a bad case of murder. Both accused were fortunate to have the Crown agree that there was no intent to kill, presumably on the basis of the intoxicated state of the offenders. I have difficulty accepting that even an intoxicated person would not realise the severity of the injury being inflicted by repeatedly stomping on the head and face of a person who is lying on the ground unable to defend or protect himself. But in any event the grievous bodily harm they must have intended to inflict upon the deceased was very grave indeed and there was such an obvious high risk of death resulting that there is little mitigation in the fact that they did not act with the intention of killing the deceased.

10 The facts underlying the robbery offences were summarised by the judge at [18] and [19] as follows :-

The facts of the robbery offences can be stated briefly. The first of these was an attack upon a male cyclist aged 20 who suffered minor injuries when attacked while riding on the Illawarra Road, Marrickville. The victim could not remember the incident. Items of the victim were later recovered and on an identification card were found the fingerprints of the offender.

The other robbery was more serious. Ms Gay was walking on Illawarra Road when the offender struck her to the back of the head. She was knocked off her feet into a fence. She slid to the ground. The offender then snatched the bag causing the strap to break. He poured out the contents on the footpath. He demanded her wallet but she said she did not have one. The offender then punched her hard twice to the head and kicked her in the left cheekbone. Fortunately for the victim a bus came by and she was able to flag it down. She asked the driver to call police and the offender and LR ran into a park. The victim suffered redness and swelling to her cheekbone, tenderness to her right cheek and a lump over the right ear. These were not the type of injuries that would aggravate the offence although it is relevant that she suffered actual violence and not simply the threat of violence.

The Sentencing of LR.

11 When sentencing LR on 3 February 2010 ( R v LR [2010] NSWSC 22), his Honour said :-

[5] There was an agreed statement of facts tendered but it was augmented by evidence given from the offender who adopted an account he gave to a psychiatrist .. of the circumstances of the killing. He was not cross-examined on this aspect of his evidence.

[16] ... The offender gave an account that was not challenged in cross-examination. He stated that the co-accused hit the victim of the robbery off his bike and knocked him out. The victim's pocket was searched but little of value was found. They walk toward nearby flats when a taxi stopped and the deceased alighted. The offender claimed he was urinating at the time. According to him the co-accused almost immediately attacked the deceased and started kicking him. The offender ran up and kicked the deceased once to the face. He thought that "things were getting out of hand" and tried to stop the attack by the co-accused but he was unsuccessful. When the violence eventually ceased the offenders searched the deceased's pockets. He gave the co-accused the wallet and keys he found but kept the mobile phone.

[17] I am prepared to accept this account although I believe that the offender is minimising his involvement in the assault. In any case on his account he witnessed what was happening to the unfortunate deceased and joined in the violence by kicking the defenceless man in the face.

[23] The offender pleaded guilty 11 months after the charges had been laid but while still in the Children's Court. He should receive a discount of 20% for the utilitarian value of his plea. I accept now that he is genuinely remorseful.

[26] .... I accept that in the infliction of violence the offender played a lesser role than his co-accused, but he was a willing participant in the causing of serious injury upon the deceased simply for that purpose. He was the initiator of the criminal activity that resulted in the killing and serious robbery offence. The Crown accepts that there was no intention to kill but I believe the intention of both the offender and his co-accused was to inflict grievous bodily harm to a very significant degree.

[32] The offence committed by this offender was a serious case of murder because it was so senseless and vicious. Although unplanned, the offender and his co-accused planned to use violence to rob some person. There is some mitigation in the fact that the offender tried to stop his co-accused but only after he had himself joined in a brutal attack on a completely innocent and defenceless person.

12 Ultimately, his Honour regarded the appropriate starting point for the offence of murder, before the application of the discount for the plea of guilty, as 19 years, 3 years less than the starting point adopted for the purposes of sentencing the applicant.

Ground 1 : Parity

13 The italicised passage in the remarks set out at [9] above is central to the applicant's argument on this ground. The applicant submits that the statement "both offenders were equally responsible for the death of the deceased" is equivalent to a finding by his Honour that both offenders were equally culpable, thus requiring the imposition on each offender of the same or relevantly similar sentence for the murder. The reference to "relevantly similar" recognises that different discounts for the respective pleas of guilty were applied to the notional starting points for the sentence, although the applicant also takes issue with the assessment of the discount.

14 The applicant went further and asserted that there was nothing in the remarks on sentence that indicated his Honour considered the applicant more culpable than the co-offender.

15 The applicant's argument invites attention to the basis upon which each offender was charged with the murder, namely, joint criminal enterprise, and to the distinction in law between criminal responsibility and culpability.

16 As James J observed (McClellan CJ at CL and Adams J agreeing) in R v Wright [2009] NSWCCA 3, when dealing with a joint criminal enterprise to cause grievous bodily harm which involved stomping on and kicking the head of the victim :-

28 If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90.

29 However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). (bold not in original)

17 This passage was also cited with approval in R v JW [2010] NSWCCA 49 at [162]. With respect to the identification of the role played by each participant in a joint criminal enterprise, Spigelman CJ said (Allsop P, McClellan CJ at CL, Howie and Johnson JJ agreeing) at [161] :-

It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise . Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues , No 38, Judicial Commission of New South Wales, June 2009.) (bold not in original)

18 More recently, in R v Sukkar [2011] NSWCCA 140, Davies J summarised the position thus at [36] :-

To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, ( Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision ( R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced ( R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). (bold not in original)

19 What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.

20 Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.

21 Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. "The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability." : R v O'Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ.

22 Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment : R v Merritt [2004] NSWCCA 19 ; R v Henry & Ors. [1999] NSWCCA 111 at [254] ; 46 NSWLR 346 ; 106 A Crim R 149.

23 Turning then to Howie J's remarks on sentence, the reference to the offenders' equal responsibility for the death of the deceased did no more than reflect their joint participation in an agreement to inflict serious physical injury that resulted in the victim's death. The findings of fact made by his Honour that attribute to the applicant the stomping injuries to the head of the deceased are not disputed by the applicant. His Honour then implicitly acknowledges that some other injuries to the face and head of the deceased were probably jointly inflicted with LR.

24 These findings were consistent with the agreed statement of facts that included a summary of the post mortem report to the effect that there were more than five visible shoe imprints to the deceased's head, including to the scalp, the right side of the face and left upper neck. These shoe imprints were consistent with the tread pattern of shoes worn by the applicant. There were also other injuries to the face, including the fracture of the jaw and extensive bruising. The findings were also not inconsistent with the unchallenged evidence of LR that he had kicked the deceased once to the face.

25 In short, a proper reading of the remarks on sentence make it abundantly clear that this applicant was indeed more culpable than LR. That greater culpability arose from his infliction of more significant violence upon the deceased than LR, a conclusion that followed from the forensic evidence and from the absence of any evidence before the judge capable of differentiating the applicant's role in the commission of the offence from that suggested by the agreed statement of facts.

26 In my view, there is no substance to this ground. The applicant's sentence does not engage the parity principle because the judge made legitimate findings of fact that gave rise to different degrees of culpability. In these circumstances, the notion of equal justice was not violated : Postiglione v R [1997] HCA 26 ; 189 CLR 295.

27 Following the hearing of the appeal, the applicant requested that the Court not deliver judgment until after the parties had been given the opportunity to file additional submissions addressing the impact, if any, of the High Court's publication of its reasons in Green v The Queen ; Quinn v The Queen [2011] HCA 49. The High Court's reasons were handed down on 6 December 2011 and supplementary submissions were received on 13 and 14 December 2011.

28 The majority of the High Court in Green and Quinn discussed the exercise of the residual discretion on a Crown appeal not to intervene, even where the sentence in question might be considered erroneously lenient. It was accepted that the application of the parity principle in severity appeals is different from its application in Crown appeals (at [34]). In the course of the majority judgment (French CJ, Crennan and Kiefel JJ) it was noted at [32] that :

A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.

29 The qualitative and discretionary judgments made by the primary judge in this case were entirely justified. The applicant has not demonstrated any error in that respect. The legitimate distinction drawn between the applicant and LR justified a difference of 3 years in the notional starting point.

Ground 2 : Denial of Procedural Fairness

30 The applicant's complaint on this ground is that the allocation of a 15% discount for his plea of guilty constituted a denial of procedural fairness, in that the judge had previously indicated during the sentencing proceedings that a discount of 20% would be applied. Further, it is said that the applicant had relied on that legitimate expectation and had not been given an opportunity to make submissions in opposition to any lower discount. In order to deal with this ground, it is necessary to place the judge's remarks in their proper context.

31 During the sentencing proceedings and following a query of the applicant's then counsel whether the applicant should receive any less or more than the 20% discount given to LR, the applicant's counsel said :-

Your Honour, I would not be arguing with the same discount.

32 The judge then referred to the delay in the entry of the applicant's plea while potential defences were explored and said :-

The simple fact is that you get your discount principally upon when the plea is given and the complexity or otherwise of the case is a different question, but this wasn't a complex case. There might have been a few witnesses called. Anyway, unless the Crown says otherwise , it seems to me a discount of 20% is appropriate.

33 After a further brief exchange, his Honour repeated :-

As I say, I am not giving him any more than 20%. Unless the Crown wants to suggest otherwise , that is what I'll give him.

34 The italicised words in the passages set out above indicate that his Honour's view regarding the level of the discount was conditional upon the Crown's submissions on that subject. Shortly thereafter, the Crown Prosecutor said "I would have submitted it be lower than that but I won't say anything more than that." The following exchange occurred :-

HH : Is there much difference between him and the co-offender in that regard ?

Crown : I believe there is, your Honour, the co-offender gave evidence.

HH : As to a plea of guilty? No?

Crown : The plea of guilty of the co-offender was much earlier. It was entered in the Children's Court.

HH : When was his [the applicant's] ? On the arraignment date in this court ?

Crown : Yes.

35 The applicant's counsel made submissions in reply but did not further address the level of the discount. To the extent that the applicant now relies upon Trujillo-Mesa v R [2010] NSWCCA 201, the applicant did in fact have the opportunity to make further submissions in response to the Crown's submissions. The possibility that his Honour would discount the applicant's sentence by less than 20% was made overt during the above exchanges.

36 During the remarks on sentence, his Honour said :-

The offender did not plead guilty until his arraignment in the Supreme Court. I was told that this was because the issue of intoxication had to be considered. That might be so but the utilitarian value of the pleas was delayed. Although I indicated at the hearing that I thought a discount of 20 per cent would be appropriate, on further reflection that would be unjustified and unfair to the co-offender who pleaded guilty in the Children's Court. I believe the Crown was correct in his submission that the discount should be less than I suggested. I am prepared to discount his sentence by 15%.

37 These remarks accurately record the discussions between the bench and counsel. They also expose his Honour's reasons for allowing the discount that he did. A discount of 15% is generally the most that could be expected on arraignment in this Court : R v Borkowski [2009] NSWCCA 102.

38 This ground also fails.

39 The orders I propose are :-

(1) Leave to appeal granted.

(2) Appeal dismissed.

40 HARRISON J : I agree with Latham J.

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Decision last updated: 27 March 2012