R v Elphick

[2002] NSWCCA 273

CITATION:	R v ELPHICK [2002] NSWCCA 273 revised - 16/07/2002
FILE NUMBER(S):	CCA 60627/00
HEARING DATE(S):	02/07/2002
JUDGMENT DATE:	2 July 2002
PARTIES :	REGINA v Eric John ELPHIC
JUDGMENT OF:	Handley JA at 1,30 & 32; Dowd J at 2; Smart AJ at 31

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70026/00
LOWER COURT JUDICIAL OFFICER :	Greg James J

COUNSEL :	Applicant- Mr D Dalton Crown- Dr Patrick Power
SOLICITORS:	Applicant- S Calomeris-Legal Aid Commission Crown- SE O' Connor
CATCHWORDS:	Appeal against sentence-special circumstances-objective seriousness of crime
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Sentencing Act 1989
CASES CITED:	R v Barry NSWCCA 138 (Unreported, 13 April 2000) R v Nixon NSWCCA (Unreported, 31 October 1995) R v Simpson NSWCCA 534, (Unreported, 19 December 2001) R v Veen (No 1) (1979) 143 CLR 458
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed

- 8 -IN THE COURT OF

60627

HANDLEY JA
DOWD J
SMART AJ

2 JULY 2002

REGINA v Eric John ELPHICK

Judgment

1 HANDLEY JA: I will ask Justice Dowd to give the first judgment.

2 DOWD J: This is an application for leave to appeal against a sentence, the applicant having entered a plea of guilty to an indictment alleging an offence of murder, which occurred on 29 December 1999. He was sentenced to fifteen years, commencing on 29 December 1999, expiring on 28 December 2014, with a non-parole period of twelve years, expiring on 28 December 2011.

3 The applicant and the victim had been involved in a domestic relationship for over two years, she being a drug addict, he a bricklayer. Psychiatric reports, accepted by the Sentencing Judge, Greg James J, accepted that their relationship was one of co-dependency.

4 The victim was dependent on the applicant for money and drugs. She took money, which he provided for her. She was also a prostitute. The relationship had a number of frequent volatile exchanges. He endeavoured, by every means, including hospitalisation, to wean her from the drugs, to which she was addicted. The victim had come to his place, taken goods and pawned them. She also stole money and destroyed his car in an accident.

5 There was a degree of physical violence in the relationship. The applicant provided money for the deceased to come to Albury to visit his family at Christmas. He, when she did not arrive, found her in Kings Cross, where he became agitated when he found that she continued to use illicit drugs and continued working as a prostitute to fund her habit.

6 He had resorted to alcohol during the relationship, and on this occasion had drank a small quantity of alcohol, obtained a boning knife, and went looking for the deceased, and upon finding her, stabbed her to death in a paroxysm of rage in the presence of other persons, whilst she was apologising to him and asking him not to do it. His aim was to cut her throat, having determined beforehand to commit that act.

7 The Learned Sentencing Judge found that the applicant’s reasoning was disordered and confused at the time, he having taken the knife in contemplation of killing the deceased and harming himself, frustration at the deceased’s association with drugs and prostitution, being the motive for the killing. The applicant said that he was scared and did not quite understand why he did it.

8 In an interview with the police after the killing, the applicant said that he had solved his problem and that he was not ashamed of what he had done.

9 His Honour found that the applicant’s evidence was entirely egocentric and that it did not reflect contrition in terms of being sorry for what he had done, his contrition being only for his sorrow at breaking the law and that the applicant felt that it was the only way to relieve himself of the association with the deceased and her drug problems, and that his love for the woman was wholly egocentric.

10 It is submitted in this application that his Honour erred in setting a non-parole period less than three quarters of the term of the sentence pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), as it was a compelling case for the setting of a non-parole period of less than three-quarters of the head sentence, as a result of special circumstances.

11 It was put that the Report of Dr Olav Neilssen opined that the applicant had a history of stable employment, stable relationships and that he would probably resume employment on release from prison. Dr Neilssen found that the applicant did not require psychiatric treatment in terms of psychiatric medication, but had responded well to counselling in gaol and was likely to benefit from further counselling. I accept this Report, in light of the expertise of Dr Neilssen in this area.

12 It was further submitted, in light of the history of only one prior period of imprisonment, some twenty years previously, that there was a strong case for special circumstances warranting the reduction of the non-parole period below the three-quarters of the overall sentence. It was further submitted that the non-parole period, being nine months longer than three-quarters of the total sentence, and the fact that his Honour did not even advert to special circumstances, demonstrated error.

13 The Crown, on the other hand, submitted that His Honour, the Learned Sentencing Judge, examined the relevant law and, in particular, had examined and considered various decisions relating to domestic murder, with relationship cases involving murder showing an average minimum term of just less than fourteen years, with an average additional term of five years and four months. The Crown further submitted that this sentence was well within the appropriate range for such a crime.

14 It was conceded by the Crown that the applicant’s release would propose no risk to the community. It was submitted by the Crown that in following R v Simpson NSWCCA 534, (Unreported, 19 December 2001), where this Court dealt with s44(2) of the Act and this sentence being consistent with that decision, the finding of special circumstances is a discretionary matter.

15 It was further submitted by the Crown that there should be no judicial intervention by an appellate court unless it was possible to form a positive view that some other sentence was warranted in law, and that error has been shown.

16 In consideration of the matters placed before the Court, I particularly refer to the decision of R v Nixon NSWCCA (Unreported, 31 October 1995), to which both counsel have referred in written submissions and in the applicant’s case orally, where Badgery-Parker J observed, at pages 7-8:

“In Regina v Twala (CCA, unreported, 4 November 1994) where this Court set aside a sentence of life imprisonment imposed at first instance and in lieu thereof fixed a determinate sentence, I said, in a judgment with which Carruthers and Finlay JJ agreed, that:
‘No direct comparison of one case with another is fruitful, but an examination of comparable sentences ... is of assistance in indicating the general range which the Court has regarded as appropriate for offences of relationship murder.’”

17 Badgery-Parker J in that case further observed, at page 4:

“An examination of twelve cases determined under s 19A, where the murder of a woman by a man occurred in circumstances of a continuing or recently terminated relationship between them, reveals total sentences ranging from sixteen to twenty-two years, with minimum terms ranging from eleven years to sixteen years, and additional terms ranging from four years to seven years. The average length of sentence is just under nineteen years. The average length of the minimum term is 13.94 years, and the average length of the additional term is 5.33 years. Clearly the present sentence is well within that range and there is nothing about the sentence itself to attract concern.”

18 The particular facts of this matter, taking into account that a boning knife was specifically taken by the applicant in his search for the victim, was a matter that comes within the sort of description given in R v Barry NSWCCA 138 (Unreported 13 April 2000), as being an horrific offence of high objective seriousness.

19 When considering the issue of s 44(2) of the Act in Simpson, referred to above, the Chief Justice, at paragraph 58, held:

“The scope of the considerations relevant to the determination of ‘special circumstances’ must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole.”

20 Clearly, the length of the minimum term of incarceration the Chief Justice held is the primary perspective. The Chief Justice in Simpson further went on to say, that a finding of ‘special circumstances’ for reducing the non-parole period below three-quarters of the head sentence is a discretionary matter and held at paragraph 62-3:

“[t]he issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting ‘special circumstances’ of the requisite character, ie, that it is capable of justifying a variation in the statutory proportion which the Legislature has enacted.

More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence”.

21 I refer to the remarks made in argument here today by his Honour Acting Justice Smart that there comes a point in time when, I paraphrase, in an offence of this seriousness, for which the minimum term cannot be further reduced. In effect, whatever the special circumstances, it is only a factor and that anything less than twelve years on the sentencing statistics, would not reflect, in my view, the objective seriousness of the offence.

22 In Simpson the Chief Justice and Sully J held that there should be no Judicial intervention unless it is clear that some other sentence was warranted in law, and should have been passed, having first established error.

23 Greg James J had due regard when imposing sentence upon the applicant, clearly by his reference to the statistics and non-parole period and additional period, His Honour had in contemplation the question of the relationship between the non-parole period and the head sentence. On the evidence before the Learned Sentencing Judge, it is clear that there were no particular special circumstances, which warranted the non-parole period being below three-quarters of the head sentence or, for that matter, actually three-quarters of the head sentence.

24 The fact there is evidence from Dr Neilssen that the applicant would benefit from counselling and the prospect of rehabilitation does not, of itself, warrant a reduction in the non-parole period. There must be evidence that longer than three years of such counselling and rehabilitation will benefit.

25 It has been put by Mr Dalton, on behalf of the applicant, that the non-parole period is usually three quarters of the head sentence. It is often forgotten that the s44 of the Act casts an obligation on a court to first set a term of the sentence, and secondly, to set a non-parole period for the sentence, that is, the minimum period. That is the primary obligation.

26 There is then, a restriction on the Court imposing less than three-quarters of the term, unless the Court finds there are special circumstances, and here the operative word “for” it being less than three quarters, that is, you just do not find special circumstances simpliciter; there must be special circumstances which show that it should be less than the three-quarters barrier, which the Legislature imposed in this Act, and indeed in its predecessor, the Sentencing Act 1989. The Court must consider the head sentence and non-parole periods each, as it were, independently, and must take into account all of the factors that a court must look at in sentencing, including the seriousness of the offence, the need for deterrence, and all the usual matters set out in R vVeen (No 1) (1979) 143 CLR 458 and the other decisions affecting sentencing generally.

27 In my view, the fact that there is a usual relationship in sentencing, between head sentence and non parole period, although in domestic cases one in which there is usually a reduction in that relationship because of special circumstances that arise in domestic matters coming within s19A of the Crimes Act 1900, there has been no error shown in His Honour’s sentence in this application. There has been no error shown on issues of rehabilitation and counselling, of the assistance that can be given of itself to warrant longer than three years, for the non-parole period and there is no error on the part of His Honour in not finding special circumstances or, for that matter, imposing a sentence which would have a reduced non-parole period of less than three-quarters of the head sentence.

28 In my view it would be wrong in this case for a less than twelve-year full time custodial sentence to be imposed. The counselling of Dr Neilssen, to which I have referred, could well be encompassed within the three years His Honour has set.

29 In the light of the fact I do not consider there is any error on the part of His Honour. I would propose the following orders.

1.That the application for leave to appeal be granted; and
2. That the appeal be dismissed.

30 HANDLEY JA: I agree.

31 SMART AJ: Having regard to the objective gravity of the murder in the present case, a non-parole period of less than twelve years was not warranted. I am in general agreement with the reasons of Dowd J. I agree leave should be granted and that the appeal should be dismissed.

32 HANDLEY JA: They are the orders of the Court.

oOo