Purtill v R

Case [2016] NSWCCA 80


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Purtill v R

Medium Neutral Citation: 

[2016] NSWCCA 80

Hearing Date(s): 

29 April 2016

Decision Date: 

6 May 2016

Before: 

Hoeben CJ at CL at [1];
Campbell J at [49];
Natalie Adams J at [50]

Decision: 

Leave to appeal against sentence refused.

Catchwords: 

CRIMINAL LAW – sentence appeal – murder – sentence of 28 years with a non-parole period of 21 years – whether sentencing judge erred in imposing a non-parole period which was greater than the standard non-parole period in circumstances where he had assessed the offence at the midrange of seriousness – whether sentencing judge was required to provide reasons for departing from the standard non-parole period and if so, what reasons were required – leave to appeal against sentence refused.

Legislation Cited: 

Crimes Act 1900 (NSW) – s 19A
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 54B, Part 4 Division 1A
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)

Cases Cited: 

Clarke v R [2009] NSWCCA 49
Collier v R [2012] NSWCCA 213
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v CM [2013] NSWCCA 341
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v Purtill [2012] NSWSC 1475
Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Ramos v R [2015] NSWCCA 313
Trad v R [2009] NSWCCA 56

Category: 

Principal judgment

Parties: 

Kevin Malcolm Purtill – Applicant
Regina – Respondent Crown

Representation: 

Counsel:
Mr M Ramage QC - Applicant
Mr E Balodis – Respondent Crown
 
Solicitors:
M McKenzie – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 

2010/51520

Decision under appeal: 

 Court or Tribunal: 

Supreme Court of NSW

  Jurisdiction: 

Criminal

  Citation: 

[2012] NSWSC 1475

  Date of Decision: 

14 December 2012

  Before: 

Harrison J

  File Number(s): 

2010/51520

JUDGMENT

  1. HOEBEN CJ at CL:

    Offence and sentence

    On 15 June 2012 the applicant was found guilty after trial of the murder of John Garda (the deceased) at Lennox Head on the north coast of New South Wales. The applicant killed the deceased by cutting his throat with a knife.

  2. The applicant was sentenced to imprisonment for 28 years with a non-parole period of 21 years commencing 26 February 2010 and expiring 25 February 2031, with a balance of term of 7 years expiring 25 February 2038. The maximum penalty for murder, pursuant to s 19A of the Crimes Act 1900 (NSW) is imprisonment for life. A standard non-parole period of 20 years is prescribed pursuant to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).

  3. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed on him by Harrison J at Sydney on 14…

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AGLC
Purtill v R [2016] NSWCCA 80
Case
[2016] NSWCCA 80
Decision Date

CaseChat Overview and Summary

The applicant, Purtill, sought leave to appeal against the sentence imposed on him by Harrison J for the murder of a deceased individual. The sentence was 28 years imprisonment with a non-parole period of 21 years. The main contention was that the sentence and the non-parole period were excessive, given the trial judge's assessment of the offence as midrange seriousness, the subjective circumstances, and the applicant's special circumstances.

The central legal issue was whether the sentencing judge erred in imposing a non-parole period longer than the standard non-parole period for a midrange seriousness offence. Additionally, the court needed to determine if the sentencing judge was required to provide reasons for departing from the standard non-parole period and, if so, what reasons were necessary. The applicant argued that the trial judge's failure to provide a record of reasons for the longer non-parole period constituted an error.

The Court considered the trial judge's approach to the sentence, noting that he applied the approach set out in Markarian v The Queen, which requires identifying relevant factors, discussing their significance, and making a value judgment on the appropriate sentence. The court emphasized that the standard non-parole period does not represent the upper limit for midrange seriousness offences, as confirmed in Muldrock v The Queen. The Court found that the trial judge appropriately took into account competing considerations during the sentencing process and did not give determinative significance to the standard non-parole period.

The Court concluded that the trial judge did not err in imposing the non-parole period and that there was no requirement for the judge to provide specific reasons for departing from the standard non-parole period. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed on him by Harrison J at Sydney on 14 December 2012. The single ground of appeal is expressed as follows:The sentence and the non-parole period were excessive and in error having regard to the trial judge’s conclusions of midrange seriousness, his findings as to subjective circumstances and the applicant’s special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.Factual background The murder of the deceased took place at the applicant's home, which the deceased had visited on the afternoon of 8 February 2010. The deceased was aged 60 at the time of his death. He died at the scene as a result of the wound to his neck. His body was later taken from the premises and buried in a bush grave by the applicant and his brother. The applicant was arrested on 26 February 2010 and has remained in custody since that time. The deceased was a businessman with interests in the Byron Bay area. On the afternoon of 8 February 2010 he went missing. This was not reported to the police until two days later. The applicant lived at that time with his partner, Tanya Barbaro, and their young child in a house owned by him at Lennox Head. The applicant was then aged almost 39 years of age. Ms Barbaro left the family home with their son and checked into accommodation at the Byron at Byron Resort on the night of 8 February 2010. Ms Richardson was a young woman who lived in a flat downstairs at the same address. She rented the premises from the applicant. At approximately 3.30pm on 8 February 2010 while the applicant’s brother was present, Ms Richardson heard raised voices coming from the house upstairs. She heard the offender yelling "you fucking cunt" a few times and then a thud like something hitting the floor. She heard screams consistent with a male in pain. At this point the applicant’s brother left her flat and ran up the back stairs of the house and knocked on the door. It was his evidence that when he entered the premises, he saw blood everywhere and eventually saw the deceased lying on the floor. His eyes were open and he was dead. At the time Ms Richardson noticed blood coming through the ceiling of her flat from upstairs. In due course the applicant’s brother was charged with using the deceased’s credit cards and being an accessory after the fact in that he assisted the applicant in the burial of the deceased. He also assisted in cleaning the applicant’s house. On 16 February 2010 the applicant’s brother was arrested and charged with the fraud and larceny offences arising from the taking and use of the credit cards. He agreed to assist the police in proceedings against the applicant. On 26 February 2010 the applicant attended the Lismore Police station and handed investigators a map showing the location of the body of the deceased. The deceased's body was located at the place indicated on the map. An autopsy revealed that a wound to the neck caused his death. The wound was consistent with having been inflicted by a knife using moderate force. There was a wound on the cheek but there were no injuries consistent with a struggle having occurred. There were no defensive wounds on the deceased.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

By reference to the previous form of s 54B the applicant submitted that his Honour had erred by failing to provide a record of his reasons for imposing a standard non-parole period which was longer than the standard non-parole period.Consideration When assessing the objective seriousness of the offence, his Honour took into account the following:The offence involved the use of a weapon, i.e. a knife.The wound to the deceased was severe and its infliction required at least moderate force.The wound was inflicted upon the deceased with an intention to kill.The applicant’s disposal of the deceased’s body was an aggravating factor.The applicant was wholly unremorseful.The gratuitous and unexplained nature of the offence required general denunciation. His Honour’s approach to objective seriousness was in accordance with the guidance provided by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 in that no subjective matters were taken into account when assessing objective seriousness. Moreover, his Honour did not give to the standard non-parole period determinative significance. Rather his Honour took it into account as a legislative guidepost but also took into account other matters. His Honour made it clear that he was applying the approach set out in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51] whereby the sentencing judge should identify all factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence. His Honour in the exercise of the sentencing discretion was required to take into account competing considerations when engaging in the instinctive synthesis process. What his Honour’s reasoning made clear and what was emphasised in Muldrock v The Queen was that the standard non-parole period does not represent the upper limit for a non-parole period for offences that are found to be in the middle range of seriousness. The middle range is, as the term implies, a range. As Basten JA observed in Ramos v R [2015] NSWCCA 313 at [48]:“…A finding that an offence is in (or outside) the middle of the range of objective seriousness can be of limited assistance and usually involves a high degree of imprecision.” In Muldrock v The Queen at [28] the High Court said:“Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.” To the extent that this ground of appeal asserts that a finding that an offence is within the midrange of seriousness automatically requires a commensurate finding that the standard non-parole period should apply or be appropriately adjusted to take into account other factors, is the very error identified in Muldrock v The Queen, i.e. giving to the standard non-parole period determinative significance.