Gurney v R; Willetts v R
[2011] NSWCCA 48
•30 March 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48 Hearing dates: 25th February 2011 Decision date: 30 March 2011 Before: Whealy JA at [1]
Hidden J at [98]
Johnson J at [100]Decision: In relation to Gurney:
(1) Leave to appeal against sentence is granted
(2) The appeal is dismissed.
In relation to Willetts:
(1) Extension of time in which to appeal is granted
(2) Leave to appeal against sentence is granted
(3) The appeal is dismissed.
Catchwords: CRIMINAL LAW - severity appeal - murder - joint criminal enterprise - principles applicable - genital mutilation of victim - gratuitous cruelty - provocation - revenge killing - parity. Legislation Cited: Crimes Act 1900 (NSW) ss 18(1)(a), 19A(1), 195(1)(b)
Criminal Appeal Act 1912 (NSW) s5(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 21A(2), 21A(2)(f), 61(1)Cases Cited: R v Steer [2006] NSWSC 1198
R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
R v Pham [2005] NSWCCA 94 at [11]
R v Kain [2004] NSWCCA 143 at [56]
McCullough v R [2009] NSWCCA 94 at [30]; 194 A Crim R 439 at 447
Olbrich v R (1999) 199 CLR 270; 108 A Crim R 464; [1999] HCA 54
Carruthers v R [2007] NSWCCA 276 at [37] - [40]
Lewins v R [2007] NSWCCA 189 at [7]; 175 A Crim R 40 at 42
Lowe v R [1984] HCA 46; 154 CLR 606
R v Swan [2006] NSWCCA 47
R v Wei Pan [2005] NSWCCA 114
Nguyen v R [2008] NSWCCA 308 at [37]
Pavicevic v R [2010] ACTCA 25 at [10]
Frigiani v R [2007] NSWCCA 81 at [24]
Porter v R [2008] NSWCCA 145
England v R; Phanith v R [2009] NSWCCA 274Category: Principal judgment Parties: Ryan Gurney (First Appellant)
Aaron Willets (Second Appellant)
Crown (Respondent)Representation: Counsel:
C Davenport SC (First Appellant)
S Buchen (Second Appellant)
P Ingram SC (Crown)
Solicitors:
Legal Aid Commission NSW (Appellants)
Director of Public Prosecutions (Crown)
File Number(s): 2009/7985; 2009/8012 Decision under appeal
- Citation:
- [2009] NSWSC 1201
- Before:
- Latham J
- File Number(s):
- SC 2009/7985
SC 2009/8012
Judgment
WHEALY JA: On 27 th October 2009, Ryan Gurney (whom I shall refer to as "Gurney") appeared for trial with a co-accused, Aaron John Willetts ("Willetts"). The two men had been charged upon an indictment that alleged that on or about 21 st March 2008 at Broken Hill, they had murdered Frederick Doldissen ("the deceased").
This was an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) for which, upon conviction, there was a prescribed maximum penalty of life imprisonment: s 19A(1) of the Crimes Act 1900 . The prescribed standard non-parole period provided for this offence was twenty years: item 1 of the Table in Division 1A, Part 4 Crimes (Sentencing Procedure) Act 1999 (NSW).
The indictment pleaded a second count against Willetts alone, in terms that on 21 st March 2008 at Broken Hill, he intentionally damaged by means of fire certain property (being compact discs and wallet, personal papers and a set of keys) belonging to the deceased. This was an offence contrary to s 195(1)(b) of the Crimes Act 1900 for which, upon conviction, there was a prescribed maximum penalty of imprisonment for a term of ten years.
The two men pleaded guilty on 27 th October 2009 to the murder charge. Willetts also pleaded guilty to the charge of damaging property by fire. Her Honour Justice Megan Latham (the sentencing judge) heard evidence and submissions over four days. The sentence proceedings were truncated and elongated for reasons that are not necessary to state here.
Her Honour pronounced sentence on 4 th November 2009. Gurney was sentenced on the count of murder to imprisonment for a non-parole period of eighteen years commencing on 23 rd March 2009 and expiring on 22 nd March 2027, with the balance of term of six years, commencing on 23 rd March 2007 and expiring on 22 nd March 2033.
Willetts was sentenced on the murder count to imprisonment for a non-parole period of nineteen years, commencing on 22 nd March 2008 and expiring on 21 st March 2027, with the balance of term of six years and six months commencing on 21 st March 2027 and expiring on 21 st September 2033. In relation to the count under s 195 of the Crimes Act 1900 , Willetts was sentenced to a fixed term of imprisonment commencing on 22 nd March 2008 and expiring on 21 st March 2010. This represented a fixed term of two years.
Gurney and Willetts each seek leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him.
Grounds of appeal
Gurney's grounds of appeal are as follows:-
(1) Her Honour erred in failing to take into account the provocation offered by the deceased as a mitigating factor in the commission of the offence;
(2) The sentence imposed failed to reflect her Honour's finding that the applicant's moral culpability for the offence was lowered as a result of his chronic mental state;
(3) The applicant has a justifiable sense of grievance arising out of the sentence imposed upon his co-offender.
Willetts' grounds of appeal are as follows:-
(1) The learned sentencing judge erred by failing to give adequate effect to the finding that the applicant played a lesser role in the commission of the murder offence;
(2) The applicant has a legitimate grievance when his sentence is compared with the sentence imposed upon his co-offender.
An extension of time is required
Mr Willetts requires an extension of time to continue his application for leave to appeal. His solicitor has provided an affidavit of 23 rd February 2011 which explains that the necessary further extension of time was not sought and that this was simply the result of an oversight on his part. The Crown did not oppose the extension of time being granted. In my view, the court should grant an extension of time to enable Mr Willetts' appeal to be properly heard and determined.
Facts relating to the death of the deceased
The sentencing judge reached the conclusion that the two offenders had been engaged in a joint criminal enterprise to kill the deceased, and that this agreement was formed immediately prior to the fatal assault upon him. Her Honour had acknowledged that the offenders stood to be sentenced on the basis of an Agreed Statement of Facts which was part of exhibit A in the sentencing proceedings. I shall recite the facts leading to the death of the deceased, partly by reference to the Agreed Statement of Facts, and partly by reference to the sentencing judge's summary of certain of those facts.
The deceased was known to both of the offenders as a drug dealer in Broken Hill. On the night of 20 th March 2008, Gurney went to the deceased's home to purchase amphetamines. Having used the drugs, he returned to the deceased's home and expressed his dissatisfaction with their quality. He asked the deceased for the return of his money or the supply of better quality drugs. The deceased refused. Gurney's hostility towards the deceased was fuelled by this encounter and by Gurney's long association with the deceased, whom he had known since Gurney's teenage years. Gurney claimed to have been sexually assaulted by the deceased as a child. Later that night, Gurney communicated this to Willetts, together with a further allegation that the deceased had sexually assaulted a childhood friend of Gurney's, who later committed suicide.
Gurney arrived at Willetts' home, which was a short distance from the deceased's home, at about 10:00pm on 20 th March 2008. Over the course of the evening, and well into the early hours of the next morning, Willetts, Gurney and Willetts' half-brother drank a quantity of bourbon. Gurney engaged in some swordplay with a weapon belonging to Willetts. At some stage there was a discussion about obtaining amphetamines. The offenders persuaded a female acquaintance to come to the house and drive them to the Shell Service Station ATM so that Gurney could withdraw money to purchase drugs. The offenders obtained three hundred dollars worth of amphetamines from this female acquaintance. She drove them back to Willetts' home and left the two men there shortly before 4:30am.
The murder was committed at some time between about 4:15am and 6:45am on 21 st March 2008. The offenders had walked to the deceased's home and jointly inflicted a series of wounds upon him, one of which consisted of a stab wound to the left of centre of the lower chest area. This passed through the anterior chest wall, into the chest cavity, through the left ventricle of the heart, and into the posterior chest wall. This wound caused immediate and heavy blood loss, rendering it unlikely that the deceased could have remained conscious for more than five minutes after the infliction of this wound. This wound and another, which consisted of the amputation of the victim's penis, were most likely to have been inflicted using a knife. The remaining six wounds were slash-type wounds inflicted by a weapon such as a sword. In addition, there were a number of facial injuries, such as lacerations to the lower lip, an associated fracture of the teeth, and wounds to the left cheek area. The injuries to the face were consistent with the application of blunt force from a wooden axe handle, later found at Willetts' home.
It was clear that the deceased suffered a number of injuries while he was in the front yard of his house, having come outside in response to the arrival of both the offenders at the house. The deceased's blood was located in the front yard and on three motor vehicles parked in the yard, and again closer to the house. It appears that an argument had developed between Gurney and the deceased. While the deceased was in the front yard of his house, Gurney punched him in the face. The deceased was also injured with the sword while he was outside the front of the house. Gurney dragged the deceased into the house, pausing on the porch near the front door. There was a large pool of blood on the front porch of the house, and a blood stain on the front door step. There was a drag mark leading from the front doorstep of the house towards the doorway leading to the lounge room of the house. A shoe print located in blood on the corner of the front porch matched the tread of the shoes belonging to Willetts.
Gurney dragged the deceased into the house to an area on the floor between the lounge room and the kitchen, where his body was located later by fire brigade officers. Once the deceased had been dragged into the house, the offenders (it was not clear whether one of both of them) searched the house and took a number of items belonging to the deceased, including his wallet, personal papers, a set of keys and compact discs. The deceased was alive at the time he was dragged into the house. Gurney spoke to the deceased while the deceased was lying on the floor inside the house. His intention was to confront the deceased about his past behaviour, including selling him inferior drugs and the childhood sexual assaults. The deceased told Gurney that he would not get away with what he had done to him. The deceased swore at Gurney, threatening to "fuck" Gurney's family. This triggered a further violent response from Gurney, who obtained a weapon (either a knife or poultry scissors) from inside the house and severed the deceased's penis, telling him that he "would not be able to fuck anyone again". The deceased was conscious at the time this injury was inflicted upon him. The penis was not subsequently located. There was no direct evidence as to how, where and when the stab wound to the heart was inflicted on the deceased. There was no direct evidence as to which of the two men inflicted this fatal wound. However, given the forensic evidence, it appeared that this wound was inflicted on the deceased while he was lying in the house, as, in the opinion of Dr Lyons, the deceased would not have been in a condition to hold a conversation with Gurney inside the house had this wound been inflicted on the deceased earlier, while he was in the front yard of the house.
After stealing a quantity of personal items and property, the offenders left the scene. Shortly before 7:00am, the fire brigade was called to the property, which was well alight. The deceased's badly burned body was discovered by fire brigade officers in the kitchen/lounge room area.
Both of the offenders took bags containing the stolen property to Willetts' home. Thereafter, Willetts took steps to destroy and/or conceal the weapons used to murder the deceased. He enlisted the help of a male acquaintance to dispose of the sword used in the assault, together with another sword belonging to Willetts. Both swords were cut into pieces, using a borrowed angle grinder, and buried in the concrete floor at a building site, where they were later recovered by police. The knife and the personal property stolen from the deceased were burnt and buried by Willetts in a creek bed out of town. Willetts later took police to this location.
Assessment of objective gravity and categorisation of the offence
It will be convenient to set out a number of passages taken directly from the sentencing judge's remarks on sentence:-
13 As will be self-evident from this account, the objective gravity of the offence of murder is of a high order. It must be stated unequivocally at the outset that the taking of a human life remains the paramount consideration. As the victim impact statements of three of the victim's eleven children attest, the victim was a loved father who contributed in meaningful ways to the lives of his daughters. This offence deprived his children and grandchildren of an important family member. It is not to the point that the inherent worth of the victim's life is thought by the offenders, and perhaps by some in the community, to have been forfeited by his alleged conduct towards Mr Gurney and others. The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law's denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how abhorrent the behaviour of those sought to be summarily punished.
14 Given the contents of the reports prepared upon Mr Gurney's behalf... and his responsibility for severing the victim's penis, I accept that the sexual assaults upon him described in those reports probably took place. Whilst Mr Gurney never reported the assaults to anyone in authority, there is sufficient evidence of his disclosure of sexual assaults at the hands of the victim to a health professional in 2004 and 2005 to establish that fact to the requisite standard: see R v Swan [2006] NSWCCA 47. To the extent that this constituted a partial, perhaps primary, motive for the assault upon the victim, the other motive being dissatisfaction of the quality of the drug supplied by the victim, it is relevant to Mr Gurney's moral culpability for the offence and to the question of personal deterrence. It may also be relevant to an assessment of his prospects of rehabilitation, but in my view it has no bearing on the need for general deterrence to be reflected in the sentence to be imposed. There is no suggestion that Mr Gurney's capacity to appreciate the consequences of his conduct was in any way impaired.
15 On any view, this was a sustained and vicious attack, committed while both of the prisoners were on conditional liberty. The victim, a 61 year old man, was met with a combined force of two armed men, each approximately half his age. The confrontation occurred in the early hours of the morning. It seems likely that the victim was called out from his home into the front yard. The sword was obviously struck repeatedly at the victim with considerable force, given the depth of the wounds. A fatal wound indicates that the knife was literally plunged into the victim's chest, at a time when the victim had already lost a considerable amount of blood and was obviously completely at the mercy of the offenders. As I have already noted, the brutality of the assault, and its continuation after the victim was prone on the floor, is eloquent of an intention to kill. The gratuitous cruelty meted out to the victim by genital disfigurement aggravates the gravity of the offence.
16 The prisoners went to the premises armed, suggesting that they anticipated the use of violence towards the victim, extending beyond the need to simply defend themselves if the victim should prove aggressive. I am of the view that they had resolved to punish the victim to some extent, together with extracting whatever "compensation" they could for the poor quality of the victim's drugs, but that the agreement to kill him did not crystallise until the assault commenced. Both of the prisoners were significantly disinhibited by their consumption of drugs and alcohol, but this in no way operates to excuse their actions. Once the assault began, they each gave full expression to their own anger, albeit the genesis of that anger was different in each case. For these reasons, I would not be prepared to find that the murder was premeditated. Rather it was a spontaneous understanding between the prisoners that the victim should die for the wrongs they believed he had committed.
17 The Crown submits the objective feature of the offence and those subjective features that are causally connected to the commission of the offence, namely a diagnosis in Mr Gurney's case of post traumatic stress disorder arising from sexual abuse as a child and the lesser role played by Mr Willetts in the infliction of the wounds upon the victim, places this offence in the high range of objective gravity, close to a worst case. The submission from the prisoners' counsel is that the objective gravity of the offence is no higher than mid range. My assessment of the offence is that it falls between those two positions, that is, markedly above the mid range for offences of this type, although not approaching the worst case. Without the contribution of Mr Gurney's psychological condition to the commission of the offence, to which I shall return, and the relatively spontaneous nature of the offence, I would agree with the Crown submission. Mr Willetts had no such personal motive, but it is accepted that he did not engage in the mutilation of the victim's genitalia.
18 Given this assessment and the prisoners' pleas of guilty, the standard non-parole period, whilst remaining a guidepost or check for the purposes of determining the non-parole period to be imposed, ought not diminish the significance of the maximum penalty in this case.
I would assess the objective gravity of the offence under s 192 of the Crimes Act as relatively low. It was committed by Mr Willetts as part of his attempts to destroy the evidence of the principal offence. In that regard, it forms part of the objective circumstances surrounding the murder. The Crown does not submit that any additional penalty is warranted for this offence.
Discount for plea
In the remarks on sentence, the sentencing judge then made a detailed analysis of the circumstance which had led to the entry of pleas of guilty. There is no need for me to detail this analysis. In the end, her Honour determined to discount the sentence to be imposed on Willetts by fifteen per cent. Gurney, however, stood in a somewhat different position as her Honour explained. He had offered to provide assistance to the Crown and his willingness to cooperate with the authorities had prompted, to some extent, the change of plea by Mr Willetts. Ultimately, her Honour indicated that she would discount the sentence to be imposed upon Gurney by an aggregate discount of twenty per cent.
An examination of subjective factors
At the outset, the sentencing judge noted that neither offender had expressed genuine remorse, beyond statements to others that suggested rather regret for the consequences of their action, rather than contrition.
Gurney was then twenty-nine years of age. He had left school after Year 10 and shortly thereafter began abusing illicit drugs, principally cannabis and amphetamines. He had work of one kind or another but his drug abuse continued to escalate to a point where it became necessary to attend a detox centre in Adelaide. It seems that he then developed psychotic symptoms resulting in his admission to a psychiatric hospital in that city. His life thereafter became more or less dominated by drugs. The sentencing judge said that his "waking and sleeping moments were almost entirely drug regulated". The memories of sexual abuse, both by the deceased and other males, contributed to a heightened anxiety around adult males. Her Honour noted that, since entering prison and ceasing his drug abuse, the offender's health had improved, both mentally and physically.
There was medical evidence that Gurney had a number of psychiatric problems, including post traumatic stress disorder, a personality disorder and drug related psychotic disorder with recurring episodes. There were others as well, as detailed comprehensively by the sentencing judge. Dr Quadrio, whose report was before the court, had expressed the opinion that the offender "was in a chronic state of mental disturbance arising out of these conditions at the time of the offence". Her Honour made the following finding (para 30):-
All of these conditions, together with the consumption of amphetamines, alcohol and Serapax on the night of the offence contributed to its commission. The prisoners' behavioural instability, intense anger and aggression found full expression in the assault against the victim. Whilst this disordered state was not sufficient to constitute substantial impairment for the purposes of reducing the offence from murder to manslaughter, it reflects on the prisoner's culpability for the offence. In short, the prisoner was not able to exercise the judgment and self-control of a reasonable person.
Willetts was thirty-seven years of age at the time the sentence was imposed upon him. Willetts grew up in a loving and supportive family and lived in the Emu Plains area for most of his adult life. When Willetts was thirteen, his father had died of a heart attack. This deeply affected him, according to his sister who gave evidence in the sentencing proceedings.
Willetts completed Year 10 and a fitter/machinist apprenticeship before commencing a lengthy employment history. He was generally always able to find employment. He was a well-adjusted individual but he too began to experiment with amphetamines and opiates from about the age of eighteen. Regular consumption of amphetamines began at the age of twenty, escalating to a habit of up to three grams per day prior to the offence. His family noted significant changes in his personality during these years.
Willetts would later find out, at about the time he turned twenty-eight, that he was in fact an adopted child. There was evidence that this profoundly affected him. He went to Broken Hill and established a positive relationship with his birth mother and siblings, obtaining employment with a local mining company in Broken Hill. Ultimately, he was dismissed from employment there, due to testing positive to illicit drugs. His birth mother passed away.
Willetts suffered from a genetic condition which manifested itself in very high blood pressure. In prison, he required hospitalisation and medication which assisted his medical condition. He had a five year old daughter and maintained a supportive relationship with his ex-partner. He continued to enjoy, at the time of sentencing, the support of his adoptive family.
Nicole Johnson, a consultant psychologist, provided a report which suggested that he may have been experiencing symptoms of depression and anxiety at the time of the offence. The sentencing judge said (para 39):-
There is no doubt that the prisoner was heavily affected by amphetamines and that his long-term substance abuse affected his ability to function generally. The prisoner also reported that his heavy consumption of alcohol that night was uncharacteristic. The evidence of the prisoner's sister, however, appears to support the conclusion that the prisoner's behaviour changed for the worse in the months and years following the discovery of his adoption. In these circumstances, it appears to me to be a reasonable conclusion that the prisoner was suffering from depression at the time of the offence. However, I am not persuaded that such a condition compromised the prisoner's capacity to form rational judgments to a significant extent.
Criminal history
Gurney's criminal history began in 1999 with a number of public order offences. It continued in 2000/2001 with offences related to the damage of property and assaults. The sentencing judge found that these were consistent with the type of offences usually committed whilst affected by drugs. There were similar offences in relation to assault and destruction of property in 2002 and 2006. In the latter year, the offender received an eighteen month suspended sentence for an offence of maliciously inflicting grievous bodily harm. That bond was breached and Gurney was called up and sentenced on 22 nd September 2008. In the result, he was at the time of sentence serving an aggregate sentence for a series of offences, the custodial aspect of the sentence dating from 1 st April 2008 and expiring on 29 th December 2009. Her Honour observed that "some measure of concurrency will be allowed in order to accommodate the principle of totality".
Willetts' criminal history had begun in 1999. He came to notice initially through the commission of driving offences. The first recorded conviction for assault occurred in Broken Hill in 2005. There were other convictions for assault and drug offences in 2007. Willetts was on conditional liberty and subject to a bond for a number of domestic assault matters at the time of the offence. Her Honour noted, however, that Willetts had never served a sentence of imprisonment. This was the basis for a submission that the court should find special circumstances. However, her Honour thought that the structure of the sentence that she was to impose would allow for a sufficiently lengthy period of conditional liberty.
Rehabilitation
The sentencing judge regarded Gurney's prospects of rehabilitation as "guarded". There was, however, no issue with respect to future dangerousness because his lengthy incarceration would be likely to facilitate long-term treatment. She did not regard specific deterrence as a prominent factor in the sentencing exercise.
Similarly with Willetts, the sentencing judge expressed guarded hopes for his rehabilitation over time. She thought he was sufficiently intelligent to reassess his life and to resolve to cease drug abuse, particularly given his health problems. She did not regard Willetts as a vehicle for specific deterrence.
Submissions on appeal - Gurney
Ms Davenport SC appeared for Gurney on the sentence appeal. There were essentially three arguments put by senior counsel on her client's behalf. The submissions were as follows:-
First, Ms Davenport argued that the words uttered by the deceased, prior to the genital mutilation, (his threats to "fuck" Gurney's family) were conceded by the Crown to have triggered a violent response by the applicant and led to the severing of the deceased's penis. It had been argued by counsel then appearing for Gurney, at the sentencing hearing, that these words "provoked" Gurney and were a matter in mitigation. Ms Davenport's submission was that her Honour failed to have regard to this matter, determining that there was no provocation offered by the deceased.
This submission was based upon a passage in the transcript of the argument during the sentencing hearing on 2 nd November 2009 (AB 420 transcript page 3). The passage may be briefly set out as follows:-
Her Honour: Thank you for that, Mr Winch. Can I just in terms of my cursory perusal of this, because I've been giving this some thought and it might also assist Mr Clarke, there is a decision of Justice Whealy's in a matter of Steer where a person broke in, killed the occupant and set fire to the premises. The attempt to burn the body and conceal the cause of the crime was regarded as an aggravating feature of the offence of murder in that case.
...
Her Honour: So that's the first thing perhaps. I'm not suggesting that you'd want to respond to that now, but it might be something that you need address later on.
Winch: Certainly.
Her Honour: The second thing is that insofar, and this is another thing that was perhaps, I don't think it was canvassed in Steer but it was certainly canvassed in another decision which escapes me for the time being, certainly there are a few of them in the database, that the commission of an offence of this nature out of a perceived need to extract some revenge is not usually regarded as a mitigating factor.
Winch: Yes.
Her Honour: It's not done in provocation . Because of the lapse of time between the perceived wrong and the offence, there is generally an acceptance that an act committed out of revenge is not a mitigating factor [ underlining added ].
...
Her Honour: I don't dispute for one minute, it's obviously relevant to an assessment to his subjective circumstances. I don't cavil with that at all. In dealing with the assessment of the objective gravity of the offence though, it can't mitigate the objective gravity of the offence.
Winch: No, that's so.
Her Honour: As I said, I'm just asking you to perhaps turn your mind to these things because ultimately when you come to make oral submissions that's the kind of matter that's been exercising my mind. That's not to say that it wouldn't be relevant to an assessment to prospects of rehabilitation or the need for the sentencing to reflect specific deterrence, because obviously it comes into play in terms of understanding why it was that he committed an offence which looks out of character on his current criminal history, so that were the two things I thought.
Ms Davenport complained that her Honour had not considered the issue of the immediate provocation offered by the deceased, and its effect upon the applicant, in the light of the previous sexual molestation by the deceased. Indeed, her Honour had found that the severing of the penis was "an act of gratuitous cruelty meted out on the victim that aggravated the gravity of the offence".
Ms Davenport submitted that her Honour failed to take into account the reason for the mutilation (ie the provocative words used by the deceased) as a matter in mitigation of the offence, but used the act of mutilation as a matter in aggravation. It was submitted that, at the very least, these matters should have been placed in the balance in determining the gravity of the offence.
The second matter raised by Ms Davenport was her assertion that the sentence imposed failed to reflect the sentencing judge's finding that the applicant's moral culpability for the offence was lowered as a result of his chronic mental state. This argument focussed upon the two psychiatric reports and the one psychological report tendered on behalf of Gurney. The sentencing judge had found that the conditions mentioned in these reports reflected upon Gurney's culpability for the offence in that "he was not able to exercise the judgment and self-control of a reasonable person". Senior counsel argued that the sentence imposed upon Gurney failed to reflect this finding.
Finally, Ms Davenport argued that Gurney had a justifiable sense of grievance arising out of the sentence imposed upon his co-offender. In short, it was submitted that, leaving aside the discount for the plea of guilty, the sentences imposed upon each of the offenders was all but identical. It was submitted that this failed to reflect the sentencing judge's finding in relation to the relevant moral culpability of Gurney when compared to the role of Willetts in the commission of the offence.
Submissions on appeal - Willetts
Mr Buchen of counsel appeared for Willetts on the sentencing appeal. His submission may be briefly stated.
First, counsel submitted that the sentencing judge had found that the applicant played a lesser role in the infliction of wounds upon the deceased. For example, the sentencing remarks referred to the fact that it was Gurney who meted out "gratuitous cruelty" to the deceased by the act of genital mutilation. Further, however, the Statement of Agreed Facts also indicated that Gurney had perpetrated a number of specific assaults on the deceased, apart from the severing of the deceased's penis.
Next, Mr Buchen submitted that there was evidence that might have satisfied the sentencing judge that Gurney was actually responsible for the fatal stab wound. Certainly, counsel submitted, it was not found that Willetts was the person who had been responsible for any particular act of violence upon the deceased.
The point made by Mr Buchen was that it was necessary for the sentencing judge to determine precisely the extent of the role played by each participant in the joint criminal enterprise in relation to infliction of the fatal wound. It could not be said that it was Willetts who had done so. As a consequence, counsel submitted that the applicant's lesser role in the commission of the offence was not adequately reflected in his sentence.
The second ground of appeal, as has been indicated earlier, suggested that Willetts had a legitimate grievance when his sentence was compared with the sentence imposed upon Gurney. First, it was submitted that the factual basis of each sentencing exercise warranted a conclusion that Willetts should receive a lesser sentence than Gurney. This was, in effect, a repetition of ground 1. In addition to those factual matters, there was the fact that Gurney was on a bond at the relevant time for a serious violent offence and this itself called for a measure of differentiation in the sentences to be imposed. Mr Buchen submitted that, overall, the existence of Gurney's psychological condition did not detract from his submission or "balance the scales". Counsel argued that both Gurney and Willetts suffered from psychological illness at the relevant time. Although there might be said to be a difference in psychological conditions, this was ameliorated by the fact, counsel said, that both men were "significantly disinhibited by their consumption of drugs and alcohol" at the time of the offence.
Finally, it was submitted that the sentencing judge had failed to make due allowance for the different culpability of the two offenders. This resulted in Willetts receiving a disproportionately severe sentence when compared to the sentence given to Gurney. For that reason, a lesser sentence for Willetts' murder offence was warranted in law.
Crown submissions
The Crown submissions in relation to the points made by Ms Davenport concerning Gurney may be briefly stated. Firstly, the Crown suggested that the sentencing judge had recognised in her remarks on sentence that the severance of the deceased's penis was in response to a sexual threat that the deceased had made to the family of Gurney. Her Honour had also recognised that it was against the background of earlier childhood sexual assaults that the deceased had perpetrated his attacks upon Gurney. It could not be argued, the Crown said, that her Honour had failed to take into account the provocative nature of the sexual threat made by the deceased to Gurney, or the circumstances in which it was made when assessing the extent to which the offence of murder was aggravated by the gratuitous cruelty involved in the severance of the penis.
Secondly, the Crown argued that the tentative remarks in discussion between the sentencing judge and Mr Winch on 2 nd November 2009 could not be equated to a finding which gainsaid her Honour's actual remarks on sentence. They were no more than a statement that courts generally will not regard motivations of revenge or retribution as a mitigating factor. In any event, the Crown argued, as an alternative, that even were the court to uphold this first ground, the scope for intervention would be very limited. Similar submissions to this were made by the Crown in relation to the remaining grounds of appeal for both appellants.
In relation to Gurney's second ground, the Crown argued that, given the maximum penalty and the standard non-parole period for murder, the sentence imposed did not fail to reflect the assessment made by her Honour that the moral culpability of Gurney was ameliorated because of his mental state at the time of the offence. This was especially so since her Honour had found that the offence was markedly above the mid range of relative objective seriousness, and that this finding took into account on a causal basis the psychological condition of Gurney and the relative spontaneity of the offence.
In relation to Ms Davenport's third ground, the Crown submitted that no justifiable sense of grievance could arise by a comparison of the sentences imposed on each of the co-offenders.
The Crown submissions in relation to Willetts may also be briefly stated. First, the Crown rebutted the suggestion that her Honour should have found, on the facts before her, that it was Gurney who used the knife to inflict the heart wound on the deceased. Both the Statement of Agreed Facts, and her Honour's summary of those facts, fully justified a finding that it was simply not possible to determine which of the offenders had inflicted the fatal wound. Secondly, the Crown argued that the course of the sentencing hearing had proceeded on this basis. Thirdly, the Crown submitted that, when her Honour stated that the applicant played a "lesser role", this was plainly in the context of the fact that it was Gurney who perpetrated the genital mutilation. All the other actions in which Gurney had been involved were part and parcel, the Crown said, of the joint criminal enterprise to which Willetts was a party, and provided no real basis for any significant distinction to be drawn between the roles of the two men.
In relation to Willetts' second ground of appeal, the Crown argued that there were a number of factors common to both offenders, but that, on the other hand, there were a number of counterbalancing considerations between the different circumstances that essentially brought the ultimate situation to one where there was no appropriate or substantial differentiation warranted by their respective positions, leaving aside of course the discount for plea, that warranted different sentences.
Resolution of the issues
Gurney
I do not consider that the first argument advanced by Ms Daveport has substance. First, the trial judge clearly recognised the fact that the severing of the deceased's penis, the mutilation of his genitalia, followed upon the deceased's threats of a sexual nature to Gurney regarding his family. Her Honour said so at paragraph 9 of her decision. It cannot be said that she overlooked this matter, or that she failed to take it into account in the assessment of the objective features of the offence, and those subjective features that were causally connected to the commission of the offence.
The principal issue before her Honour was whether the murder fell into the worst case, or close to it. The prospect of a life sentence (s 61(1) Crimes (Sentencing Procedure) Act 1999 ) was a live one for the court to determine. The matters bearing on this can be seen from the submissions of the parties. Her Honour briefly described these, as I have indicated. The Crown had argued that the objective features of the offence, and those subjective features causally connected to its commission, namely a diagnosis in Gurney's case of post traumatic stress disorder arising from sexual abuse as a child, and the lesser role played by Willetts in the infliction of the wounds upon the victim, placed the offence in the high range of objective gravity, close to a worst case. On the other hand, each offender's counsel had argued that the objective gravity of the offence was no higher than mid-range. Her Honour assessed that the offence fell between those two positions, that is, markedly above the mid range for offences of this type, although not approaching the worst case. It was made clear that, without the contribution of Mr Gurney's psychological condition to the commission of the offence, and the relatively spontaneous nature of it, her Honour would have agreed with the Crown's submission. In that context, the sentencing judge also noted that Mr Willetts had no such personal motive, but, on the other hand, it was accepted that he did not engage in the mutilation of the victim's genitalia. A fair reading of the sentencing judge's remarks on sentence show this to be so.
A more detailed examination of the submissions made before the sentencing judge can be discerned from the written submissions on sentence provided both by the Crown and the offenders at trial. In the case of Gurney, it appeared to be accepted, in his submissions, that there were a number of aggravating factors in terms of the matters set out in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 . These were that the offence was committed by the use of weapons, it was committed in company and that "the offence involved gratuitous cruelty". In addition, it was accepted that Gurney was on conditional liberty at the time of this offence. The submission was made, however, that despite the aggravating factors, it was not thereby elevated to a level of gravity "within the worst category of case".
Mitigating factors relied upon by Gurney in the written submissions included, as might be expected, that the offence was not planned or premeditated. Her Honour appears to have accepted this in that she spoke of "the relatively spontaneous nature of the offence". Secondly, it had been submitted that the words of the deceased "provoked Gurney and led directly to the amputation".
The written submissions by the Crown at trial had included the submission that "the severing of the deceased's penis while he was still conscious constituted gratuitous cruelty". The Crown submitted this was an aggravating feature on sentencing, pursuant to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 . Moreover, the Crown submitted that, in relation to the offenders' desire to avenge Gurney's alleged childhood sexual abuse by the deceased, the court should not appear to be "sanctioning victims of crime taking the law into their own hands by carrying out retaliatory criminal acts in revenge for crimes visited upon them". This submission referred to the decision of Howie J in R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296.
On the issue of subjective circumstances, the Crown accepted in its written submissions that there was evidence that Gurney suffered from post traumatic stress disorder following the sexual abuse in his youth. There was also reference to the psychiatric evidence that memories of the abuse triggered feelings of intense anger and rage that led Gurney to commit acts of violence and aggression. The Crown accepted that this was relevant to the circumstances in which Gurney severed the deceased's penis during the course of murder. The Crown submitted that, in effect, the presence of the psychiatric illness, and its manifestation, might appropriately reduce the criminality involved to a level below the worst category of case. In other words, the Crown was submitting that, absent the psychiatric illness and its particular manifestations, the offence might well have fallen into the worst category of case. The Crown submission said:-
The accused, Gurney, appears to have taken the deceased's threat to his family (as the deceased lay injured inside his house during the course of the attack upon him) literally, as a threat to sexually interfere with members of his family. This triggered his rage, as described in the various reports. To the extent that this aspect of the attack upon the deceased appears to have been triggered by symptoms referable to the deceased's continuing post traumatic stress disorder, it is relevant to his culpability, as that expression is used in s 61(1). For this reason, the Crown does not submit that the case is in the worst case category in respect of the accused, Gurney.
In my view, the sentencing judge dealt with the oral and written submissions of the parties in a way that gave full recognition to the impact the deceased's conduct had on Gurney in relation to the severance of the deceased's penis. It is clear that her Honour took these matters into account as matters that had an important bearing on reducing the objective seriousness of the offence to the level she found, a level below that sought by the Crown, but above that submitted by Gurney's counsel. The provocative conduct of the deceased was clearly taken into account in an entirely appropriate way in the sentencing exercise.
Normally, this court will not find an error of principle from interchanges during submissions between the bench and counsel. Additionally, remarks of that kind do not necessarily reflect a considered decision: R v Pham [2005] NSWCCA 94 at [11] and R v Kain [2004] NSWCCA 143 at [56]. I do not consider that the brief remarks by the sentencing judge during the submissions on sentence should be given any weight in the assessment of this ground of appeal. As the Crown has submitted in this appeal, her Honour was, in those remarks, plainly dealing with a different proposition, namely that the law does not tolerate the commission of an offence arising out of a perceived need to exact some revenge for an earlier wrongdoing. This argument with counsel was ultimately reflected in her Honour's statement in the decision:-
The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law's denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how abhorrent the behaviour of those sought to be summarily punished.
The final point argued by Ms Davenport on ground one related to her Honour's finding that "gratuitous cruelty" had been meted out to the victim by genital disfigurement, and that this aggravated the gravity of the offence. As I have said, this was not in dispute in the sentencing hearing. It was expressly accepted by Gurney's counsel in the written submissions. The expression "gratuitous cruelty" suggests that the infliction of pain is an end in itself: McCullough v R [2009] NSWCCA 94 at [30]; 194 A Crim R 439 at 447 - "It is needless yet intentional violence committed simply to make the victim suffer." While it is true that the deceased's conduct here was accepted as providing a trigger for the cruel behaviour that followed, it could not be said that this response, ghastly as it was, was justified. I do not consider that, in the circumstances, her Honour fell into any error by finding that gratuitous cruelty was involved and that this aggravated the offence. As I have said, there was no real contest between the parties that this was the situation.
The second ground of appeal relied on by senior counsel is also without substance. Once again, the passages I have recited from her Honour's remarks on sentence demonstrate that the assessment of the objective gravity of the offence was significantly moderated by a consideration of Gurney's chronic mental state. It, together with other factors, brought the offence down to a situation where the objective gravity of the offence was that it was "markedly above the mid range for offences of this type, although not approaching the worst case". Her Honour made it quite clear that, in the absence of Gurney's psychological condition and its contribution to the commission of the offence, the objective gravity of the offence would have been considerably higher. In the same way, when the sentencing judge came to consider Gurney's subjective circumstances, full consideration was given to his chronic mental condition. Her Honour expressly found that, while his disordered state was not sufficient to constitute substantial impairment for the purposes of reducing the offence from murder to manslaughter, it reflected upon Gurney's culpability for the offence. It should be noted that there is no ground of appeal which asserts that the sentence was manifestly excessive. I do not accept that her Honour failed to reflect the fact of Gurney's mental condition in the sentence imposed upon him.
I shall deal with and comment upon Gurney's arguments that require a consideration of a comparison of the sentences imposed upon the two offenders when I come to examine the second ground relied on by Willetts.
Willetts
Although Mr Buchen, who appeared for Willetts on the appeal, submitted there was a strong overlap between his client's two grounds of appeal, it will be convenient to deal with each ground separately.
As with Gurney, there is no ground of appeal that suggests the sentence was manifestly excessive. The first ground is focussed upon an observation made by the sentencing judge that Willetts "played a lesser role in the infliction of the wounds" upon the deceased.
Mr Buchen subdivided this ground into four segments. These were, first, that Gurney inflicted the genital mutilation upon the deceased; secondly, that the majority of physical assaults on the deceased were carried out by Gurney (eg he initiated the attack by punching the deceased, dragged the injured deceased into the house and verbally confronted the deceased in the house prior to the genital dismemberment); thirdly, that her Honour's findings, in general terms, should have picked up an inference that it was not Willetts who inflicted the fatal wound and, finally, that Gurney's mental state was not a countervailing feature to Willetts' lesser role of sufficient weight so as to justify a finding of equal culpability.
In relation to the third aspect relied on by Mr Buchen, counsel's submission was that the onus of proof beyond reasonable doubt lay on the Crown to establish that Willetts had inflicted the fatal wound upon the deceased, whereas Willetts carried the onus on the civil standard to establish that he did not perform the act or that the act was performed by another person. Counsel relied on the authority of Olbrich v R (1999) 199 CLR 270; 108 A Crim R 464; [1999] HCA 54. In relation to the fourth segment of ground 1, it will be more appropriately dealt with under ground two, since it directly raises issues of parity or, more accurately, due proportion, as between the two murder sentences.
In relation to the first three aspects of this ground of appeal, I am not satisfied, upon a fair reading of the sentencing judge's remarks, that her Honour erred by failing to give adequate effect to the finding she made that the applicant played a lesser role in the commission of the murder offence.
The first point to be made is that her Honour's actual finding was that "the lesser role" played by Willetts related to the "infliction of the wounds upon the victim". It was not her Honour's finding that the applicant played a lesser role in the commission of the murder offence. Secondly, apart from the genital mutilation, the agreed statement of facts did not permit her Honour to find, nor did she, who it was who inflicted upon the deceased each of the other major wounds, including the fatal stab wound. It needs to be recalled that the severe facial injuries sustained by the deceased went beyond mere punching, and were consistent with the application of blunt force from a wooden axe handle, as the sentencing judge noted, later to be found at Willetts' home. The six major wounds on his body described as "slash type wounds", were likely to have been inflicted by a weapon such as a sword. The amputation of the victim's penis was most likely inflicted using a knife or perhaps a pair of scissors. The fatal wound was also likely to have been inflicted by a knife, but there was no evidence as to the precise identity of the person who plunged the knife into the deceased's chest and through his heart.
The Agreed Statement of Facts made it clear that it was Gurney who had dragged the deceased into the premises and it was he who, at some stage, cut the deceased's penis off. This wound, according to the statement, could have been inflicted by using a knife, or a pair of scissors used to cut poultry. It is also true that the Agreed Statement of Facts made it clear that earlier when an altercation had developed between Gurney and the deceased in the front yard of the house, it was Gurney who had punched the deceased in the face. The statement did not detail who it was, of the two men, who inflicted the more serious facial injuries upon the deceased.
The Agreed Statement of Facts recited this as the sequence of events:-
The sequence of events in terms of the time and location within the deceased's premises at which the injuries were inflicted on the deceased, and the extent of the participation of each accused in the infliction of the deceased's injuries, is not entirely clear when considering all of the evidence, including the forensic evidence...
There is no direct evidence as to how, where and when the stab wound to the heart was inflicted on the deceased. However, given the forensic evidence, it appears that this wound was inflicted on the deceased while he was lying inside the house as, in the opinion of Dr Lyons, the deceased would not have been in a condition to hold a conversation with Gurney inside the house had this wound been inflicted on the deceased earlier, while he was in the front yard of the house.
A close reading of her Honour's remarks on sentence make it clear that "the lesser role played by Willetts in the infliction of the wounds upon the victim" was, as the Crown submitted, a reference to the topic discussed later in that paragraph, namely that:-
Mr Willetts had no such personal motive, but it is accepted that he did not engage in the mutilation of the victim's genitalia.
In all other respects, it was simply impossible for the sentencing judge to determine who it was who had inflicted each of the other major injuries upon the deceased. As the written submissions before this Court accepted, where there is a joint criminal enterprise to kill a person, participants in that enterprise will, prima facie, be equally liable for the offence of murder, and subject to the same maximum penalty. Where, however, it is possible to identify the extent of the role played by each participant in such an enterprise, this will ordinarily become a significant determinant of culpability, and may warrant the imposition of different penalties ( Carruthers v R [2007] NSWCCA 276 at [37] - [40]). Equally, insofar as it can be demonstrated, the extent to which a particular offender participates in the physical acts of violence may also be a factor that bears on the assessment of his culpability, and may accordingly justify a differentiation in sentence imposed, as between the co-participants in the enterprise.
In the present case, however, it is clear, from both the Agreed Statement of Facts and her Honour's findings, that the conclusion that the offenders were engaged in a joint criminal enterprise to kill the deceased, and that this agreement was formed immediately prior to the fatal assault upon him, was fully justified. Her Honour rightly described the immediate circumstances as an attack upon a 61-year-old man, arising from the combined force of two armed men confronting him in the yard of his home in the early hours of the morning. Her Honour was alive to the fact that it was Gurney who inflicted the severance of the penis but, in relation to each and every other major aspect of the assault, it was simply impossible to tell which man had inflicted the individual wounds, and in what precise sequence. The effect of Mr Buchen's submissions was that this court was being asked to determine that it was, in fact, Gurney who had inflicted the fatal wound. It is impossible, indeed quite inappropriate, for this court to be asked to do so in circumstances where the trial judge correctly determined that she could not determine the issue. The infliction of the wound was the product of the joint criminal enterprise, an enterprise participated in by both Gurney and Willetts.
There is a further point that needs to be made. Willetts (as was Gurney) was represented by competent counsel. The sentencing hearing proceeded over a number of days. If Willetts wanted to challenge any aspect of the Agreed Statement of Facts, he could have done so. If, for example, Willetts had wanted to demonstrate to the sentencing judge that he had not inflicted the fatal wound, or that a substantial number of the more severe wounds had been inflicted by Gurney, he could have been called to given evidence to that effect. The point of the two offenders being dealt with in the one sentencing hearing was that it enabled the trial judge to receive from the parties any relevant evidence that would impact upon the individual culpability of each of the participants in the joint criminal enterprise. Both Willetts and Gurney, it appears, were content for the judge to proceed on the basis of the Agreed Statement of Facts. Willetts cannot now complain because the judge did not make findings of fact more favourable to him, when it was his choice, presumably, not to give evidence to challenge or override any matters in the Agreed Statement of Facts presented to the judge.
Mr Buchen submitted to us that, in some respects, counsel then appearing for Willetts was "underdone". This was a reference to a remark in the transcript made by Willetts' counsel. To the extent that this suggests that trial counsel was, to a degree, unprepared during the sentencing hearing, it needs to be seen in its context. Counsel's complaint was based on the fact that he had not been in the case for very long, and that this situation meant that he was "scrambling" to obtain psychiatric and pre-sentence reports to have them ready for the hearing. There was no suggestion that counsel was in any way inhibited by a lack of instructions from his own client. Willetts was, at the time, in custody in Broken Hill where the sentencing hearing took place.
For all these reasons, I have concluded that ground one cannot be sustained.
Ground two was based on the proposition that Willetts has a legitimate sense of grievance arising from the fact that he received a more severe sentence than that of his co-offender. The complaint here is not that the sentence imposed on Willetts was inappropriate, but that the sentence imposed upon Gurney is one that gives rise to a sense of injustice ( Lewins v R [2007] NSWCCA 189 at [7]; 175 A Crim R 40 at 42, per Howie J).
There are a number of strands to Mr Buchen's argument on this ground. As counsel readily suggested, there is an element of overlap between grounds one and two. Essentially, Mr Buchen submitted that a much heavier culpability lay upon Gurney than it did upon his client. Secondly, he argued that the aggravating feature represented by the genital mutilation ought to have been solely visited upon Gurney, not upon his client. Thirdly - this was the final segment that arose under ground one - insufficient weight had been given by the sentencing judge to the finding that Willetts played a lesser role when it came to assess the countervailing situations of each offender.
Mr Buchen relied on two further matters. The first was that the co-offender Gurney had a more serious criminal record than did Willetts. Counsel placed emphasis on the fact also that, at the relevant time, Gurney was under a s 12 bond for an offence of maliciously inflicting grievous bodily harm. By contrast, Willetts was on a bond for a number of offences including domestic assault and the like matter. Finally, Mr Buchen referred to the fact that Gurney had a number of outstanding prison sentences to serve at the time he came to be sentenced by her Honour. The sentencing judge made the murder sentence concurrent by a period of nine months in relation to those other sentences that were imposed. The murder sentence given to Gurney commenced on 23 rd March 2009, just over nine months prior to the expiry of the aggregate non-parole period given for those other unrelated matters. That non-parole period had commenced on 1 st April 2008 and was to expire on 29 th December 2009.
The point made by Mr Buchen was that only seventeen years and three months of Gurney's aggregate non-parole period was solely referrable to the murder matter. By contrast, Willetts received a non-parole period of nineteen years, which was solely referrable to the murder matter. This was yet another reason why Willetts, in an objective sense, might properly be said to have a legitimate sense of grievance arising from the way in which Gurney had been sentenced.
Before considering these arguments, it is appropriate to make some brief general observations about the situation where co-offenders come to be sentenced by the one sentencing judge.
First, it is obviously highly preferable and desirable for alleged co-offenders to be dealt with at the same time before the same judge. Where this is not done, and where administrative arrangements lead to different judges dealing with different co-offenders, serious problems can arise ( Lowe v R [1984] HCA 46; 154 CLR 606, per Brennan J at 617; and also per Dawson J at 622).
Secondly, where the same judge comes to sentence two offenders at the same time and gives detailed reasons for imposing the sentences, taking into account the differing criminality of each, and the differing circumstances, an appellate court will be cautious and not overly willing to conclude that one of the offenders has a justifiable sense of grievance, simply because there are different sentencing outcomes ( R v Swan [2006] NSWCCA 47, per Barr and Howie JJ at [71]).
In R v Wei Pan [2005] NSWCCA 114, Johnson J, with the concurrence of Giles JA and Hoeben J, referred to the parity principle in sentencing, as follows:
[34] The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v R (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at para 6.
[35] Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at para 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney , above, at para 16.
This statement of the parity principle was adopted by Howie J in Lewins v R and Grove J in Nguyen v R [2008] NSWCCA 308 at [37]. It was also adopted by the ACT Court of Appeal in Pavicevic v R [2010] ACTCA 25 at [10].
In dealing with this second ground of appeal, I propose to consider each of the individual elements or strands relied upon by Mr Buchen, and then examine the overall situation. As to the asserted difference in culpability between the two men, this has already been dealt with under ground one. The fact that Willetts was not involved in the genital mutilation was a matter clearly and appropriately taken into account by her Honour. It was taken into account in three ways. First, it was recognised as an aggravating feature of the offence. Secondly, it was an act perpetrated by Gurney on the deceased. Thirdly, it was an act that was not perpetrated by Willetts on the deceased, nor did he participate in it. There is no suggestion that her Honour failed to give consideration appropriately to each of these situations. On the other hand, in all other major respects, Willetts was a participant in the joint criminal enterprise that caused the death of the deceased.
The second assertion, namely that Gurney's mental state was used unfairly in the sentencing for Gurney in a way that failed to give Willetts credit for the lesser role he had played in the attack, cannot be justified. There were a number of complicated and countervailing considerations that her Honour had to take into account. One of those was the mental condition of Gurney. It was clear that her Honour's finding that Gurney "was not able to exercise the judgment or self control of a reasonable person" was based substantially on aspects of his mental condition. It is true, as her Honour observed, that along with the psychiatric conditions identified by Dr Quadrio, there was the fact that Gurney had consumed amphetamines, alcohol and Serapax on the night of the offence. This court does not accept, however, that it is a fair reading of her Honour's decision that the impairment in judgment and self control suffered by Gurney, although it fell short of substantial impairment for the purpose of reducing the offence from murder to manslaughter, was substantially caused by the two men's "disinhibition" by reason of their consumption of drugs and alcohol. Certainly that was a factor, but her Honour made it quite clear that this did not lessen the culpability of either man.
The position with Willetts is that her Honour found that, although the consultant psychologist's report had been unable to determine whether he had been experiencing symptoms of depression and anxiety at the time of the offence, there was a body of other evidence that enabled her to conclude, in his favour, that he had in fact been suffering from depression at the time of the offence. However, in his case, she was not persuaded that this compromised his capacity to form rational judgments to any significant extent. There was obviously a real difference between the situation of the two offenders in that regard.
As I have said, a countervailing consideration was the extent to which Willets had been involved in the assaults at a lower level than Gurney. Her Honour found, correctly, in my view, that this difference lay essentially in the fact that Willetts had played no part in the genital mutilation. On this point, there was no other real difference that could be discerned between their levels of participation.
The third aspect of counsel's submissions related to the more substantial criminal history of Gurney when compared to that of Willetts, and the fact that Gurney was on conditional liberty for a more serious offence than the one involved in Willetts'. As to the first aspect of this argument, it was a matter for her Honour to bring this difference to balance in the overall exercise of her discretion. I have no doubt that she did so. As to the second, Mr Buchen did not advance any authority to support his submission. In Frigiani v R [2007] NSWCCA 81 at [24], it was held that the commission of an offence whilst the offender was subject to a s 10 good behaviour bond constituted the aggravating factor listed in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 , regardless of the conduct in respect of which the bond was imposed. It has been said that the purpose of s 21A(2)(j) is to capture the common law principle that an offence committed while a person is subject to conditional liberty (on whatever basis that conditional liberty has been granted), constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour ( Porter v R [2008] NSWCCA 145, per Johnson J with whom Bell JA and McCallum J agreed). In general terms, it may be said that it will not ordinarily be necessary to examine the conduct involved in the commission of the offence in respect of which conditional liberty has been granted. Equally, the sentencing judge will not be required to be concerned, in ordinary circumstances, with the background to the factors under which conditional liberty has been granted. In the present matter, the difference argued for by Mr Buchen cannot be regarded as a relevant difference at all.
Finally, there is the aspect dealing with the way in which her Honour backdated Gurney's murder sentence so that there was a degree of concurrence between completion of the earlier unrelated custodial sentences and the commencement of the murder sentence.
I note from the transcript of the sentencing hearing that, during the discussions with counsel on 3 rd November 2009, her Honour had indicated a tentative view that she might commence Gurney's sentence on 4 th November 2009, to take account of this situation. As matters happened, her Honour did not take up that tentative suggestion. It may be that her Honour simply thought that it was inappropriate to do so. It may be that her Honour, perhaps, overlooked the matter. Either way, I am not prepared to find that this matter, of itself, could lead, in the present circumstances, to a finding of disparity. A ground asserting disparity is concerned with "such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated, having regard to the sentence passed on the other" ( England v R; Phanith v R [2009] NSWCCA 274, per Howie J (McCellan CJ at CL and Fullerton J agreeing, at [61] - [67]). The difference manifested by this particular matter cannot be described as "gross", "marked", or a "glaring" disparity ( Lowe v R ).
I turn now to give consideration to the overall impact of all the matters raised by Mr Buchen on behalf of Willetts. At a superficial level, it may seem surprising that Gurney received a sentence of eighteen years, whereas Willetts received one of nineteen years. It is true that Gurney was, in some ways, the instigator of the "revenge" trip to the deceased's home. It is true that Gurney probably began the assault by punching the deceased. It is also true that Gurney committed the horrendous act of severing the deceased's penis while the deceased was alive. Yet, as the sentencing judge found, this was a joint criminal enterprise, spontaneously determined between the two men to instigate a fatal assault upon the deceased, and to kill him. Quite apart from the genital mutilation, the wounds inflicted upon the deceased were multiple, and demonstrated a vicious and callous attack. There were a number of aggravating features that legitimately impacted on the culpability of each of the participants in the enterprise. It was not possible, however, for the sentencing court to determine who had inflicted the fatal wound on the deceased, or for that matter, a range of other quite serious and vicious woundings. Each offender stood on equal terms in relation to the assault, save and except for the genital mutilation. In Gurney's case, the deceased had used the provocative words to him whereupon, in the light of his serious mental condition, the genital mutilation had been triggered. To that extent, the provocative words tempered that aspect of the culpability of the offence, so far as Gurney was concerned. The benefit of that moderation flowed through to Willetts as well. In addition, the sentencing judge acknowledged that Willetts had no part to play in that particular horrendous action.
In relation to the subjective circumstances of the case, her Honour gave very detailed consideration to the position of each man. She had regard to the details of the plea and assistance given to Gurney, and the plea entered by Willetts. The sentencing judge gave very careful consideration to the mental condition of each man. As I have said, there was a real difference in this regard between the two. However, for proper reasons, Willetts was ultimately given a considerable recognition of the utilitarian benefit of his plea, notwithstanding that it occured relatively late in the piece. In addition, the sentencing judge came to the conclusion, in his favour, notwithstanding the absence of precise psychological evidence to that effect, that he had been suffering from depression at the time of the offence. The mental condition of the two men, however, was markedly different in terms of the ability of Gurney to exercise judgment and self control. Her Honour acknowledged that both of the offenders were significantly disinhibited by drugs and alcohol, but rightly concluded that that in no way operated, on its own, to excuse the actions of either. There were other matters of minor difference between them, their situations, and each of these was recognised by the sentencing judge.
In short, there were a number of factors that pulled one way, and then the other, when the individual sentences were being assessed. To that extent, the sentencing judge was confronted with a complicated and difficult sentencing exercise, requiring very considerable skill and care. Quite apart from the assessment of the objective seriousness of the offence, the assessment of the culpability of each of the offenders, and their subjective circumstances, the pleas by both men and the assistance given by Gurney had to be added into the equation.
The sentencing judge clearly determined that, absent the pleas (and assistance by Gurney), a proper assessment of the overall culpability of each man, in the light of his subjective circumstances, required a sentence that was, in each case, substantially the same. It has not been demonstrated that her Honour was in error in reaching the conclusion she did.
I have concluded that, having regard to all the circumstances outlined, Willetts is not, objectively viewed, entitled to have a legitimate sense of grievance in relation to the sentence imposed upon Gurney.
I propose the following orders:-
In relation to Gurney:
(1) Leave to appeal against sentence is granted
(2) The appeal is dismissed.
In relation to Willetts:
(1) Extension of time in which to appeal is granted
(2) Leave to appeal against sentence is granted
(3) The appeal is dismissed.
HIDDEN J: I agree with the orders proposed by Whealy JA and with his Honour's reasons.
In this Court a question was raised whether, in the circumstances, the severing of the victim's penis by the applicant Gurney amounted to gratuitous cruelty. Were it not for the concession that it did by counsel appearing for him in the sentence proceedings, I consider that that question would have required closer examination. However, her Honour had no cause to do so as it was a matter which was not in contest. In any event, making all due allowance for the circumstances in which it occurred, that act remained a particularly grave feature of Gurney's conduct.
JOHNSON J: I agree with Whealy JA.
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Decision last updated: 30 March 2011
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