R v Bascombe No. Sccrm-00-218

[2000] SASC 461

R v BASCOMBE
[2000] SASC 461

Court of Criminal Appeal: Doyle CJ, Olsson and Bleby JJ (ex tempore)

1................ DOYLE CJ:..... I agree with the orders proposed by Bleby J and with his reasons.

2................ OLSSON J:...... I also agree.

3................ BLEBY J:........ The appellant is one of five defendants sentenced by a judge of this Court for the murder of Tracey Muzyk on 10 December 1996.  The killing can only be described as brutal, taking place after many hours of torture inflicted by the defendants. 

1. Tracey Muzyk was eighteen years old at the time of her death.  The appellant was aged seventeen.  His male co-offenders Matthew Austin and Ian McKenzie were aged twenty and eighteen and a half respectively.  His female co‑offenders, Tara Kehoe and Amanda Pemberton, were aged eighteen and seventeen respectively.

2. The circumstances of the killing have been described by the Chief Justice in R v Austin and McKenzie (1999) 74 SASR 591 at 592-593. That case concerned an appeal by Austin and McKenzie against the fixing of their respective non‑parole periods. I adopted the same description in deciding a subsequent appeal by Kehoe and Pemberton in R v Kehoe and Pemberton [2000] SASC 119. It is not necessary to repeat those circumstances yet again. They are, nevertheless, obviously of great significance in determining the non‑parole periods fixed in respect of each of the other defendants and in respect of the present appellant.

3. In Kehoe and Pemberton (supra) at par [8] - par [14] I had occasion to summarise the backgrounds and respective roles in the killing of each of the defendants, including the present appellant.

4. I will not repeat them.

5. The starting point taken by the sentencing judge for each defendant, the discount he allowed to each for the plea of guilty and the actual non‑parole period fixed for each of the defendants, expressed in years, are set out in the table below:

Defendant	Starting Point	Discount for Guilty Plea	Non-Parole Period
Austin	24	2	22
McKenzie	24	2	22
Bascombe	22	2	20
Kehoe	20	2	18
Pemberton	20	5	15

1. As I have mentioned above, Austin and McKenzie appealed against the determination of their non‑parole periods.  The Court of Criminal Appeal, comprising the Chief Justice, Mullighan J, and Perry J dissenting, allowed the appeal because it appeared that the sentencing judge, in fixing the respective non‑parole periods, had adopted an erroneous sentencing approach by fixing the period by reference in part to the age and expected lifespan of the offenders. 

2. That was an approach which had previously been adopted in this and other courts: R v Von Einem (1985) 38 SASR 207 at 220; R v Bricis (1996) 186 LSJS 217 at 220; R v Moyle (1996) 186 LSJS 462. However, the approach was held to be erroneous by the High Court in Inge v R (1999) 199 CLR 295. Inge was decided after the date of sentencing of these five defendants.

3. The majority of the Court of Criminal Appeal determined fresh non‑parole periods for Austin and McKenzie of 18 years each, after allowing 4 years discount for their pleas of guilty.

4. The starting point for each was therefore lower than had been determined by the sentencing judge, and a greater discount was given for their pleas of guilty.

5. Kehoe and Pemberton then appealed against the fixing of their non‑parole periods on similar grounds.  That appeal came before a differently constituted Court of Criminal Appeal comprising the Chief Justice, Mullighan J and me.  We allowed those appeals and substituted non‑parole periods of 15 years and 6 months for Kehoe and 14 years for Pemberton: Kehoe and Pemberton (supra).

6. In the reasons which I then gave for fixing new non‑parole periods, being reasons with which the Chief Justice and Mullighan J agreed, I took a starting point of 19 years for each appellant and allowed for Kehoe a similar percentage discount as the first Court of Criminal Appeal had allowed for Austin and McKenzie.  The circumstances and timing of the confessions and pleas of all of them were very similar.

7. I took a similar starting point of 19 years for Pemberton but the circumstances of her confession and plea were very different, resulting in her lower non‑parole period.  I refer to, but do not here repeat, the reasons I then gave for allowing those appeals.  It was almost inevitable that those appeals should be allowed, given the result in the first appeal by Austin and McKenzie.

8. The same defect infected the original sentencing process for all defendants.  The fresh non‑parole periods fixed, as in the cases of Austin and McKenzie, reflected correspondingly lower starting points for each of the appellants and a greater discount for the pleas of guilty than had been allowed by the sentencing judge.  I considered it desirable to maintain, as far as possible, the same relativities as the sentencing judge had imposed, but found it necessary, for reasons then given, to compress those relativities to some extent.  I also gave due recognition to principles of parity, after making allowance for the respective roles and antecedents of each of the defendants.

9. The present appellant is the last of the defendants to appeal.  It is inevitable that his appeal must also be allowed for reasons which dictated that the earlier appeals be allowed.

10. In originally fixing the non-parole periods, the sentencing judge fixed a starting point for the appellant between those of Austin and McKenzie on the one hand and Kehoe on the other.  He gave the same discount for their pleas. The differences reflect a number of factors: not only their respective roles in the murder and their antecedents, but also their respective ages and degrees of maturity.

11. I have considered the role played by the present appellant. I have considered his antecedents.  They have already been summarised in the earlier appeals.  I have taken into account his age and the circumstances attending his contrition and plea of guilty.  I see no reason to differentiate between the relative starting points, discount and non-parole periods fixed by the sentencing judge for Austin, McKenzie and Kehoe, on the one hand, and those which should now be fixed for the present appellant.

12. I would, therefore, allow the appeal.  I would set aside the non-parole period fixed by the sentencing judge.  I would fix a non-parole period of 16 years and 9 months, the non-parole period to date from 20 December 1996 being the date on which the appellant was taken into custody.

21.............. DOYLE CJ:..... The orders of the court are as follows:

1...... Appeal allowed.

2. Set aside the non-parole period fixed by the Supreme Court.

3...... Fix a non-parole period of 16 years 9 months.

4. Direct that the non-parole period operate from 20 December 1996.