R v Hearne

[2001] NSWCCA 37

Reported Decision: 124 A Crim R 451

New South Wales

Court of Criminal Appeal

CITATION:	R v HEARNE [2001] NSWCCA 37
FILE NUMBER(S):	CCA 60316 OF 1999
HEARING DATE(S):	24 March 2000
JUDGMENT DATE:	28 February 2001
PARTIES :	Regina Murray Walter HEARNE
JUDGMENT OF:	Powell JA at 1; Hulme J at 1; Dowd J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70045/98
LOWER COURT JUDICIAL OFFICER :	Wood CJ at CL

COUNSEL :	Crown: M Grogan Appellant: MC Ramage QC
SOLICITORS:	Crown: SE O'Connor Appellant: Jeffreys & Associates
DECISION:	The appeal is allowed; The sentence imposed on the Applicant on 4 June 1999 in respect of the offence of murder is quashed; In lieu thereof the Applicant is sentenced in respect of the offence of murder to imprisonment for a term of 18 years commencing on 3 March 2001 such term to include a non-parole period of 13 years and to be concurrent from that date with the sentence imposed on 4 June 1999 for malicious wounding; The Court specifies as the date upon which the Applicant shall be eligible for release on parole, 3 March 2014

- 27 -IN THE COURT OF

No 60316 of 1999

POWELL JA
HULME J
DOWD J
Wednesday, 28 February 2001

REGINA -v- Murray Walter HEARNE

JUDGMENT

1    THE COURT: On 4 June 1999, this Applicant for leave to appeal was sentenced by Wood CJ at CL in respect of 2 charges:-

(i) the murder on 28 February 1998 of Constable Peter Forsyth, and,
(ii) the malicious wounding of Constable Jason Semple on 27 February 1998, with intent to do him grievous bodily harm.

2    The maximum penalties prescribed for these offences are, respectively, life imprisonment and imprisonment for 25 years.

3    The sentences imposed were, on the first charge, a minimum term of penal servitude for 20 years commencing on 3 March 1998, with an additional term of 7 years and, on the second, a fixed concurrent term of 6 years. These sentences were formulated to take account of the totality of the Applicant’s criminality, Wood CJ at CL having expressed the view that, considered in isolation, individual sentences “involving a minimum term of the order of 18 years, with an additional term of 5 years”, and “a minimum term in the order of 6 years, with an additional term of 2 years” would have been appropriate. His Honour also observed that a minimum term less than that imposed would not properly reflect the objective and subjective criminality of the Applicant.

4    It is contended on behalf of the Applicant that the sentences were excessive. In support of that proposition, it was submitted that:-

(i) the sentence was manifestly excessive and outside the appropriate range of sentences for the Applicant’s criminality, and
(ii) the sentencing judge failed to given any or adequate weight to the following matters -
(a) that the Applicant effectively surrendered himself to police,
(b) that the Applicant pleaded guilty,
(c) the Applicant’s contrition and remorse,
(d) the Applicant’s prior (relatively) good character, and
(e) that the Applicant’s intent was to inflict grievous bodily harm (rather than to kill)
(iii) Wood CJ at CL erred in his findings and the significance he attached to them in respect of -
(a) the fact that the victims were police officers,
(b) the Applicant’s carrying and use of a knife,
(c) the reason for the Applicant’s use of the knife
(c) the lack of premeditation
(d) the Applicant’s youth,
(e) the rejection or ignoring of evidence of 3 witnesses.

5    It is convenient to refer firstly to the specific matters referred to in paragraphs (ii) and (iii).

Surrender

6    What had occurred in this connection was that, having largely concealed his involvement in the offences for 3 days, and made plans to flee, the Applicant ultimately admitted his involvement to his father and was prevailed upon to give himself up. This was effected by his ringing a newspaper and confessing to one of its reporters, the conversation in this regard being still in progress when police entered the flat where the Applicant was. We would regard “surrender” as an appropriate word to describe the Applicant’s conduct in this regard although the evidence makes it clear that by that time he must have known that arrest was inevitable.

Plea

7    His Honour observed:-

“… The prisoner is entitled to the benefit of his pleas of guilty and I propose to take that into account in his favour when determining an appropriate sentence. This, however, is a case where the plea was entered at the last moment rather than at an early stage of the proceedings. While it can still be taken as expressing a degree of contrition, and while it has a utilitarian value in saving the community the time and cost of a criminal trial, the value of a late plea as a mitigating circumstance is diminished.”

8    There was no challenge to the proposition that the plea was entered at the time his Honour stated nor to any other statement in this passage. However, it was submitted that the plea should have received stronger value than it did because there was a distinct possibility that defences of provocation or self-defence would have succeeded, and that it was only shortly before the plea was entered that the prosecution framed the second charge as it did rather than alleging an intent to kill. This latter proposition was accepted by the Crown and we would agree that there was the possibility to which the submissions referred.

9 The Chief Judge having given no other indication of what allowance he made for the Applicant’ plea, its significance is something to be taken into account when considering the “manifestly excessive” ground. Although R v Thompson [2000] NSWCCA 309 had not been decided at the time of the sentence under appeal, the Appellant’s plea entitled him to an appreciable discount and perhaps along the lines of the minimum of 10% indicated in that case.

Contrition and Remorse

10    On this topic his Honour found:-

“The Prisoner has impressed both the author of the pre-sentence report and Dr Westmore as to being genuinely remorseful as to his actions. I accept from his evidence and from the evidence and material supplied by those who have assessed him or otherwise known him, that this is now the case.
I am also assisted in coming to the conclusion by the apparent spontaneous expression of regret that appears in the transcript of the conversation with the other Prisoner that was recorded recently. There is no reason to suppose that the Prisoner knew or suspected that his conversation was being monitored, or that he saw any advantage in presenting a false appearance of remorse to a fellow Prisoner.
I am not, however, persuaded that this remorse was always present. Nor am I persuaded that his remorse was entirely for the widow and family of Constable Forsyth or for Constable Semple. Initially the Prisoner behaved in a way that suggested that he was quite unconcerned for what he had done, and considered himself to be a likely hero in certain quarters for the stabbing of two police officers…
The picture over the period between the offences and the time of arrest is one of a person who was untroubled by his acts, who was functioning deliberately and calmly, and was doing everything he could to escape justice and whose concern was only for himself. That position, I am persuaded, has changed significantly since he has been in custody and since he has been forced to confront the reality of his actions.
I accept that he is now genuinely remorseful for what he has done. I am also satisfied that he remains very sorry for himself. In the light of these various conclusions I am of the view, subject entirely to the attitude that he takes to the opportunities for further education and training that are available in prison, and subject to the influences to which he becomes subject, that his chances of recidivism are relatively low and his prospects of rehabilitation are generally favourable. He will be sentenced on that basis.”

11    It was also submitted that a large component of the Applicant’s desire to plead was a sincere regret for what he had done and a willingness or desire to receive appropriate punishment.

12    In this regard the Applicant’s father gave evidence that he had told the Applicant that the would spend the rest of his life in prison because of his actions and that the Applicant had responded that he deserved it for what he had done. Mr Hearne senior also said that, following the Applicant’s plea, the Applicant had said, “Now I’ve got it all out in the open, it has lifted a great weight off my shoulders”.

13    This evidence was not the subject of challenge but it does not add anything of significance to his Honour’s remarks concerning the topics of the plea, remorse and contrition - remarks in which we see no error. Again, the significance of these factors is best left until consideration is given to the ground of manifest inadequacy.

(Relatively) Prior Good Character

14    The Applicant had committed a few minor offences and had some history of illicit drug use. All of these matters His Honour, correctly, regarded as of little moment. The Applicant had been well behaved at school and since then had had intermittent success in obtaining employment. He had been of some assistance to police in other proceedings.

Intent to do grievous bodily harm

15    His Honour found that the Applicant’s intention was to inflict grievous bodily harm rather than to kill.

The victims were police officers
Carriage and use of a knife and the reason for use
Lack of Premeditation

16    It is convenient to deal with these three topics together. The circumstances leading up to the offences were that, at about 11.30 or 12 o’clock at night in a street of Ultimo the Applicant and his half brother offered what was believed to be an Ecstasy tablet to 3 off-duty police officers. The latter then manoeuvred the Applicant and his brother into a recessed doorway or alcove of a building. There was conversation in the course of which the police indicated their dislike of the Applicant’s activities. The Applicant was instructed to sit down and he went down on his haunches. He was then asked for identification and in the course of responding he stood up and said “I’m going. I’m out of here.” Constables Semple and Forsyth sought to prevent this and a struggle ensued. In the course of it the Applicant, using a knife he had had in his bum bag, stabbed Constable Semple in the abdomen and chest and Constable Forsyth through the heart and then ran off.

17    Wood CJ at CL found that the Applicant was somewhat obsessed by knives but whether this be so or not, it is clear that he had familiarity with the dangers of them. In October 1996 the Applicant had been present when a friend had stabbed 2 other persons during the course of a fight and later gave evidence about the incident. In about December 1997 he had been present when some Lebanese youths threatened his brother with a knife. In consequence the Applicant decided to arm himself similarly and said that, arising from his concerns for the safety of himself and his siblings in Sydney, he adopted the practice of carrying a knife when in their company. About a month before the subject offences the Applicant’s younger brother was involved in a fight with another boy. When the father of that boy intervened the Applicant presented and threatened him with a knife at close quarters. The Applicant said that he had believed the man was armed with a hammer at the time. He had been warned by his father that knives were tools not weapons.

18    On the topics with which we are presently dealing Wood CJ at CL found:-

“52. In all those circumstances, I am not prepared to find that the Prisoner had actual knowledge that the three men were police. He did however know that he had been detained because of his attempts to sell a tablet of Ecstasy to three men and he did realise that he was potentially in some sort of trouble because of it. It was in those circumstances I am satisfied that he used the knife, not because he feared being bashed or kicked, but because he wanted to escape the possibility of trouble arising in connection with the offer of supply. The precise nature of that trouble was probably not fully apparent to him at the time.
53. It may be finally accepted, in relation to the assessment of the objective criminality of the Prisoner, that his actions were impulsive rather than premeditated. Had it been established beyond reasonable doubt that the Prisoner knew Constables Forsyth and Semple were in fact police officers and also that they were acting in the execution of their duty at the time of the offences, then this would have brought the case into the worst category, justifying the maximum penalty of penal servitude for life or something approaching it.
54. As has been repeatedly observed by the Court of Criminal Appeal, police who are subjected to violence in the course of their duties are entitled to the full protection of the law, and offenders who are involved in crimes of that kind must expect condign punishment: see the decisions of the Court of Criminal Appeal in Crump 7 February 1995, Nasif 10 March 1995, and Rees 22 September 1995. In Adams (1999) NSW SC 144, I stated my conclusion, to which I adhere in this case, that similar considerations apply to those who inflict violence upon off duty police so long as the selection of the victim or the infliction of violence or the level of violence applied, can properly be said to relate to that office and not be purely coincidental with it.
55. Although I am not satisfied beyond reasonable doubt that the Prisoner in this case had the knowledge that would attract an application of these decisions, the offences still fall within the upper range of seriousness viewed objectively. Those who carry and use knives can expect very little by way of mercy when they appear for sentence, see the decisions of the Court of Criminal Appeal in Rothapfel 4 August 1992, Watt 2 April 1997 and Bell 29 September 1997.
56. There exists, in this case, the need for a sentence that not only imposes a significant element of personal punishment and retribution but additionally, and for the reasons explained in Rushby (1977) 1 NSWLR 594 at 597, carries with it, as a strong message of general deterrence, that this community simply cannot and will not condone the carrying or use of knives. To carry a knife, which in many instances will itself involve an offence, inevitably attracts a risk that it will be used. I would be failing my duty if I were to be weakly merciful in sentencing the present Prisoner who has used a knife with the deadly consequences for one victim and the serious consequences for another that I have described.”

19    It was submitted that Wood CJ at CL erred in rejecting the possibility that the Applicant’s use of a knife was because of fear of being bashed by those who had forced him and his brother into the alcove. To appreciate this submission and what was meant by the terms used in paragraph 52 above, it is necessary to understand the issues which arose before his Honour as to the reasons for the Applicant’s use of a knife. The Applicant gave evidence that when he produced the Ecstasy tablet it was taken from him by one of the police officers who threw it away, saying “Well, that was a waste of $40”. Thereafter one of the officers remarked, inter alia, “You’re fucking drug dealers and we ought to bash youse.” Then he and his step-brother were put in the alcove, in his case forcibly. In the alcove he received blows to a rib and the back of his leg, blows he assumed were kicks. Reference was again made to the two being drug dealers and a remark was made to the effect “We ought to kill them.” By this time, according to the Applicant, he was scared and thought that he and his brother were going to be “bashed or killed”. (It may be that the judge’s use of the expression “bashed or kicked” contains a typographical error”.) It was in these circumstances that he took his knife out of his bum bag.

20    The 2 police officers who gave evidence, Constables Semple and Neville denied that there was any kicking or punching of the Applicant or his step-brother and denied that there was any threat of killing or bashing although agreed that there had been the confinement and indications of dislike of drug-dealing to which we have referred above.

21    Against this background, and particularly in light of what followed in paragraph 52, we do not read the understand the reference “not because he feared being bashed or kicked” as a rejection of the possibility that the Applicant feared being bashed or kicked (or killed) but as a rejection of the Applicant’s evidence to that effect. The very nature of the topic - the Applicant’s thoughts - would make a positive finding of what they were not difficult if not impossible and this alone argues against the conclusion that that was what the Chief Judge was doing. His Honour’s reference to the possibility of trouble, the precise nature of which was not being fully apparent argues in the same direction. Thus we see no error in his Honour’s remarks the subject of the present submission.

The Applicant’s Youth

22    The Applicant was born on 4 May 1979 and was 3 months short of his 19th birthday at the time of the offences. As to the significance of this the learned sentencing judge remarked:-

“76. The age of the Prisoner is also a matter which needs to be taken into account in that there is a public interest, in the case of a young offender, in imposing a sentence that preserves a proper opportunity and encouragement for rehabilitation. The considerations of punishment and general deterrence, it has been accepted, should be regarded as subordinate to the need to foster the interests of rehabilitation in the case of a young offender, see Wilkie NSW CCA 2 July 1982, Tran NSW CCA 109, and GDP , 53 A Crim R 112. However, the significance of this factor diminishes the nearer the offender is to adulthood: Nguyen NSW CCA 14 April 1994 as it does when the offender conducts himself like an adult and commits a particularly serious crime: Tran and see also Townsend & Cooper NSW CCA 14 February 1995. The present is a case where these principles apply to reduce, although not entirely to exclude, any leniency that can be extended on account of the Prisoner’s youth.”

23 It was submitted that, despite these remarks, the sentences indicated and imposed demonstrated that any leniency on account of youth had been almost entirely excluded. Secondly, it was submitted that the youth factor was not to be diminished (merely) because of the seriousness of the crime, reliance being placed on the observations quoted in GDP (1991) 53 A Crim R 112 that “in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed”. Thirdly, it was submitted that the cases cited as illustrations of where an offender conducts himself as an adult and commits a particularly serious crime shows that they are far removed from the conduct of the Applicant.

24 Consideration of the first of these propositions can be left until the complaint of manifest excessiveness in the sentence is considered. The second submission is supported by the passage we have quoted and by the fact that in none of the cases is it suggested that the weight to be given to the element of youth varies depending on the seriousness of the offence. Rather is the topic dealt with in materially the same way as it is in the case of lesser offences - see for example R v Wade (unreported, Wood J, 5 September 1986), R v Ford (unreported, Wood J, 22 March 1988), R v Webster (unreported, CCA, 15 July 1991), R v Howard, Mihailovic, Morgan and J (1992)29 NSWLR 242, R v Gordon (1994) 71 A Crim R 459 at 469, R v Townsend and Cooper (unreported, CCA, 14 February 1995, per Simpson J, and R v Stokes (1997) 138 FLR 137 at 138. Of course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones.

25 In that the principal offences committed by Townsend, Cooper and Tran, referred to in paragraph 76 which we have quoted, were premeditated acts of violence, the third of the submissions referred to in paragraph 23 is made out. However it is, we think, appropriate to look beyond the simple difference in facts and to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, i.e. the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years. Thus it was that Hunt CJ at CL in R v Allam (unreported, CCA, 13 April 1993), in a passage quoted by Sully J in R v WKR (1993) 32 NSWLR 447 at 460 said:-

“If, in a particular case, a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensible as deriving from the offender’s ‘ … state of dependency and immaturity …, then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law.”

26 A similar approach of imposing a sentence less than otherwise appropriate is taken where an offender, though not legally insane, suffers from significant intellectual disability - Scognamiglio (1991) 56 A Crim R 81. In this area also the extent and significance of the disability is taken into account - see R v Wright (1997) 93 A Crim R 48, R v Bus & A S (unreported, CCA, 3 November 1995), and R v Letteri (unreported, CCA, 18 March 1992).

27    It is, at least in part, for a similar reason that the courts have taken the view that, the younger the offender, the greater the weight to be afforded to the element of youth.

28    It takes no great maturity to appreciate in the course of planning, for example, an armed robbery or other instance of violence, that such activities infringe the rights of others in a way that no civilised society can tolerate. It may be, in light of the Applicant’s experience with knives, that similar considerations apply with equal force to his decision to carry a knife. However, the same cannot be said of his response to the undoubtedly stressful situation in the alcove on the night of 27 February. Although an adult may have reacted as he did and the reaction was one of violence, it is not possible to postulate that his reaction was not influenced by the immaturity of youth. Thus, there is substance in the submission that the cases cited as illustrations of where an offender conducts himself as an adult - cases which involve premeditated violence - and commits a particularly serious crime are at some distance removed from the conduct of the Applicant.

The Rejection or Ignoring of Evidence of 3 witnesses.

29    In written submissions in support of the appeal, it was put:-

“It is submitted that the sentencing judge erred in rejecting out of hand the evidence of Tiffany Thorne and Scott Van Meurs as to their observations of the incident and assaults by the police without intimating that he proposed to do so. Similarly he erred in ignoring the evidence of Cassandra Wee as to there having been a fight whereupon the Applicant was struck blows by the police prior to any stabbing and the police saying “we don’t want fucking drugs or something like that”.

30    There is no doubt that Wood CJ at CL did reject the evidence referred to in this submission although nothing has been advanced to indicate that his Honour’s rejection of the evidence was “out of hand”. The fact is that his Honour accepted inconsistent evidence from Constables Semple and Neville. And what evidence to accept was primarily a decision for his Honour. The 2 persons just mentioned were called whereas Tiffany Thorne and Scott Van Meurs were not, their “evidence” being contained solely in written form. Cassandra Wee was called but no reason has been shown why his Honour was under an obligation to accept her. There is no substance in this ground.

Sentence Manifestly Excessive

31    There was no criticism of the learned sentencing judge’s indication that the charge of malicious wounding, considered in isolation, merited minimum and additional terms of 6 and 2 years respectively and we are content to proceed on the basis that his Honour’s indication was correct. In that regard it might not be inappropriate to note that the Judicial Commission statistics for all offenders sentenced to full time custody for this offence - about 15% avoided full time custody - show median full and minimum/fixed terms of 5 years and 3 years respectively. Comparable figures for offenders under 21 with no prior convictions (albeit only 16 offenders) are 5 years and 2 years.

32    However, it should be recorded that it was not submitted by the Crown that the general sentencing pattern revealed in the statistics was too low.

33    The sentence which Wood CJ at CL thought the murder offence considered alone merited “involving a minimum term of the order of 18 years, with an additional term of 5 years” is a relatively high sentence. Judicial Commission statistics for the offence of murder show that the median full term for all offenders is about 18 years and the median minimum (it is unlikely to be fixed) term is about 14 years. Comparable figures for offenders who fall into the category of “No Priors, Plea Guilty, Less than 21 Years” are about 18 years and 12 years. Because the statistics are dealt with in 2 year increments and rounded upwards, these figures are likely to be a little on the high side. The statistics do not, of course, contain any details of the nature of the offences and accordingly they provide at best a rough guide in any particular case.

34    A murder which is not premeditated either in act or intention, and the intention when formed is to inflict grievous bodily harm rather than an intention to kill, does not obviously fall into the more serious half of murder offences. R v Ashfield, R v Lowe, and R v Everett, cases referred to in a schedule to these Reasons, are authority for the proposition that, at least generally, an offence involving an intent to kill is more serious than one where the intention is to inflict grievous bodily harm. The approach taken in a number of other cases in that schedule also illustrates this point. We are, with respect, unable to agree that the instant offence fell within the “upper range of seriousness” (of murder offences) “viewed objectively” as Wood CJ at CL in paragraph 55 of his remarks (quoted above) characterised it. We are comforted in that conclusion by the fact that counsel who appeared for the Crown on the appeal was unable to refer the Court to a comparable case where the sentence was as high as that here.

35    We do not forget the circumstance that at the time Constable Forsyth was engaged in apprehending, or at least dealing with a drug dealer but it is equally important to remember that many murder victims are entirely innocent.

36    Another matter to be noted is that the term of 27 years ultimately imposed reflects relatively little discount on the grounds of totality compared with the simple accumulation of the sentences Wood CJ at CL thought appropriate to each offence considered in isolation, particularly when it is remembered that the offences themselves occurred in the one incident of criminality, seconds apart. We would not criticise the discount of 4 years in the minimum term - 20 instead of 24 - (assuming the 24 years is itself appropriate) but the additional term of 7 years reflects none. And there is nothing in the Applicant’s past which suggests that, after a period of 20 years in prison he would need 7 years to re-adjust to life outside or by way of supervision.

37    Allowance must be made for the discretion which sentencing involves and for the need to which his Honour adverted to discourage the carrying and use of knives. However, it must also be recognised that in this case the knife was carried with a view to protection rather than to assist in the commission of an offence. Thus, in terms of objective criminality we would not regard the murder of Constable Forsyth as as serious as most cases of felony murder of which R v Mills and R v Robinson referred to in the schedule are examples.

38    Included in that schedule are summaries of a number of cases selected by no particular criteria other than that they do, in totality, provide a guide as to the appropriate sentencing range. While the sentence in some might be thought to be lenient, a number of the cases do inspire the following comments:- (For convenient comparison with the sentence of minimum and additional terms of 18 and 5 years indicated by Wood CJ at CL as appropriate for the Applicant’s murder offence, we have included an indication of the minimum and additional terms imposed in the cases mentioned.)

Bowhay 16/7 The criminality was worse than that involved in the Applicant’s murder offence.
De Gruchy 21/7 The criminality was far worse than the totality of the Appellant’s.
Gash 15/5 The criminality was comparable to the totality of the Appellant’s.
Graff 18/5 The criminality was substantially worse than the totality of the Appellant’s.
Hungerford 18/6 The criminality was substantially worse than that involved in the Applicant’s murder offence.
Mills 16/7 The criminality was significantly worse than that involved in the Applicant’s murder offence.
Nelson 14/7 The criminality was worse than that involved in the Applicant’s murder offence.
Webster 14/6 The criminality was substantially worse than that involved in the Applicant’s murder offence.

Some, but not all, of these offenders were young.

39    A further feature which is to be noticed in a number of cases in the schedule is the tendency in the case of young offenders to increase the additional term at the expense of the minimum term - see for example, R v Bowhay, R v Howard. Indeed, in R v Townsend & Cooper (unreported, CCA, 14 February 1995), where Hunt CJ at CL said that the nature of the offence made youth of lesser importance than it might otherwise have been in the determination of the total sentence, his Honour still regarded youth as an important factor in considering whether there were special circumstances warranting a longer than usual additional term (and a corresponding reduction in the minimum term). No such approach was adverted to or, except to a minimal degree, adopted by Wood CJ at CL and, although we do not suggest it is obligatory that such a course be followed, it is a further feature of the sentence which raises a question whether his Honour paid adequate attention to the Applicant’s youth.

40    In the result, the conclusion at which we have arrived is that the sentence imposed on the Applicant should be quashed. Although we have identified but one aspect of his Honour’s reasons with which we disagree, when regard is had to the Applicant’s plea, his remorse, and prior record, and more particularly his youth, lack of premeditation and to the fact that the intent found was only to do grievous bodily harm and a comparison is made with the pattern of sentencing illustrated by the Judicial Commission statistics and the cases listed in the schedule, it seems to us inescapable that the sentence imposed on the Applicant was manifestly excessive.

41    We are of the view that, considered in isolation, the Applicant’s murder offence merited a sentence of 18 years. No less is required by the seriousness of his offence but we do not think any higher sentence would give adequate weight to the factors of lack of premeditation, absence of intent to kill, and youth. We, of course, do not ignore the other factors, including his plea which operate in his favour. We also take account of a number of certificates obtained by the Appellant in prison and indicating that, while there, he has been applying himself towards some self-improvement. The Applicant’s youth would also lead us to impose a shorter than usual minimum term. Although R v Howard, R v Lowe and, when regard is had to the difference in criminality, perhaps R v Mills and R v Webster, argue for a lesser period, the minimum term should not however be less than 13 years.

42    When account is taken of the offence of malicious wounding, and having regard to principles of totality, we think the result should be a minimum term of 16 years and an additional term of 5 years.

43    And to those who would suggest this sentence is too light, we invite attention to the following. While, of course, no sentence this Court could impose could equal the harm the Applicant did to Constable Forsyth, for acts which might fairly be characterised as stupidity, albeit dangerous stupidity, the Applicant will be incarcerated until he is, at least, almost 35. The impact of that incarceration will not cease immediately on his discharge and he will thus have very substantially lessened opportunities of a career, wife and children. That is no minor punishment and, as has been said before - per Hulme J in R v Spiteri (unreported, CCA, 24 February 1999) - the impact of a 10 year minimum term is substantially more than twice as severe as that of imprisonment for 5 years. Those remarks apply with more force when the sentence is of the length of that proposed here.

44 The result which we think appropriate can be achieved by leaving the fixed term of 6 years from 3 March 1998 which Wood CJ imposed for the offence of malicious wounding and imposing the sentence for murder so it commences after the Applicant has served 3 years of that fixed term and is thus in part concurrent and otherwise consecutive to that fixed term. That course is permitted by s47(2)(b) and s55 of the Crimes (Sentencing Procedure) Act 1999.

45    The new sentence proposed envisages that there will have been a finding of special circumstances - see s44(2). They exist in that the new sentence will be partly cumulative to that imposed on the malicious wounding charge.

46    Accordingly the orders of the Court are:-

1. The appeal is allowed.
2. The sentence imposed on the Applicant on 4 June 1999 in respect of the offence of murder is quashed.
3. In lieu thereof the Applicant is sentenced in respect of the offence of murder to imprisonment for a term of 18 years, commencing on 3 March 2001, such term to include a non-parole period of 13 years and to be concurrent from that date with the sentence imposed on 4 June 1999 for malicious wounding.
4. The Court specifies as the date upon which the Applicant shall be eligible for release on parole, 3 March 2014.


Schedule


R v Ashfield and Hughes (unreported, Badgery-Parker J, 16 December 1994)
These offenders were sentenced to penal servitude for minimum terms of 16 years and additional terms of 5 years in respect of the murder of a 6 year old child of Ashfield. The victim had been grossly abused by numerous blows including 34 separate injuries to the head and neck.

Badgery-Parker J took the view that the attack by each was in a fit of rage contributed to in no little measure by their upbringing and the circumstances in which they were placed but that protection against further offending was not a significant factor in the sentencing. Both had pleaded guilty albeit only at the time of commencement of their trial but his Honour was satisfied that both were remorseful. Ashfield was 25 and Hughes 20 at the time of the offence but, given that Hughes was in loco parentis at the time, His Honour said that Hughes’ youth provided no reason for any great reduction in the sentence otherwise appropriate. (But see below)

Ashfield (unreported, CCA, 27.2.98)
This Court reduced the above sentence imposed on Ashfield to minimum and additional terms of 14 and 5 years on the grounds that there was a significant psychiatric component or similar vulnerability present and, to quote the words of Wood CJ at CL. “murder resulting from an intention to do grievous bodily harm is not as objectively serious as murder involving premeditation or a specific intention to kill”.

R v Barry [2000] NSWCCA 138
This offender was sentenced by Newman J to minimum and additional terms of 18 and 6 years for the murder of his wife, a sentence which also reflected the offender’s criminality in maliciously wounding his step-daughter during the same incident. (He was sentenced to a concurrent term of 12 years for that offence.) He had pleaded not guilty to murder on the ground of diminished responsibility. He had a history of alcoholism and of violence towards his wife. At the time of the offences he was subject to an apprehended violence order and was on a bond for assaulting her. In the month before her death had expressed an intention to kill her. On the night of the offence he attended his wife’s home, stabbed his step daughter and, after forcing both victims to lie on the floor , stabbed his wife 4 times, 3 of the wounds being to her right breast. The fatal wound extended 160 cm into her body. There was psychiatric evidence that the Applicant suffered from depression and personality disorders but alcoholism was his main problem. This Court refused to reduce the sentence.

R v Bowhay [2000] NSWCCA 54
Dunford J sentenced this offender to penal servitude for a minimum term of 16 years and an additional term of 7 years. The trial Judge found that the Applicant formed an intention to kill albeit possibly only during the course of belting up the deceased. The death was caused by stabbing, strangling and stomping and in his interview with the police the offender indicated he was proud of what he had done.

The offender had had a “most unfortunate” childhood and had a bad criminal record albeit almost exclusively for offences not involving violence. He was diagnosed as having an anti-social personality disorder. He was 18½ at the time of the offence and Dunford J recorded that “the authorities dealing with the reduced significance of general deterrence relate to juveniles, rather than young adults, and have very limited, if any, application to offenders who conduct themselves as adults and commit crimes of considerable gravity” and “the sentence should be longer than is the case in many other murder sentences, but the increase should be weighted towards the additional term rather than the minimum term because of the offender’s youth”. This Court declined to interfere with the sentence.

R v De Gruchy (unreported, Grove J, 17 December 1998)
This offender was sentenced to 3 concurrent terms including minimum terms of 21 years and additional terms of 7 years in respect of the murder of his mother, his sister and brother. The killings lacked premeditation but were attended by seemingly frenzied beatings of the victims and were without apparent motive. Grove J was unable to make any finding concerning contrition. The risk of re-offending was regarded as significant although the offender had no prior convictions. The offender would seem to have been nearly 18 at the time of the offence.

R v Everett (unreported, CCA, 13 December 1995)
This Court reduced a sentence of minimum and additional terms of 18 and 6 years respectively to minimum and additional terms of 16 and 5 years for an offender who deliberately set his wife on fire with petrol. Observing that the original sentence was at or very close to the top of the range for sentences imposed for “relationship” murders, the court placed reliance, in reducing it, on the fact that the trial judge had not found an intent to kill. The offender had pleaded not guilty. Youth does not seem to have been a factor.

R v Gash (unreported, Grove J, 20 July 1995)
This Prisoner, who pleaded guilty to offences of murder and malicious wounding with intent to do grievous bodily harm was sentenced to penal servitude for a minimum term of 15 years and an additional term of 5 years and, in respect of the second charge, to a concurrent sentence of 6 years penal servitude. After ingesting a deal of cannabis and alcohol he chased another patron of a hotel and attacked him by slashing him with a knife the prisoner carried. In a separate incident soon afterwards he attacked another person with the knife, killing this second victim. Neither victim was known to the offender who told the police he did not know why he had committed the offences. He was almost 21 at the time. He had had a disturbed childhood, suffered from a personality disorder of a mixed type and had a minor criminal record. He was regarded as contrite.

R v Graff (unreported, Barr J, 25 September 1998; CCA, 29 January 2001)
This offender was sentenced to penal servitude for a minimum term of 18 years and an additional term of 5 years on a charge of murder and a concurrent term of 8 years on a charge of robbery in company. The robbery in company occurred when the offender and 2 others attacked and beat into unconsciousness the driver of a taxi they had hired. The murder occurred some 9 days later when they attacked and kicked to death another taxi driver. Also taken into account was an offence some 2 years earlier of assault occasioning actual bodily harm when the offender was one of 5 persons who punched and kicked into unconsciousness a person on a railway station and a second offence committed 6 months earlier of the malicious infliction of grievous bodily harm when the offender punched another victim who fell to the ground and suffered permanent severely handicapping brain damage. Barr J observed that the two offences taken into account were so serious that they should materially affect the sentence imposed.

The offender was 20 at the time of his offences, was of average to below average intellectual ability and had difficulty in controlling his aggression. He was regarded as presenting a serious risk of violence when under the influence of alcohol and had a minor prior record. He pleaded guilty at a late stage and that event was regarded as some evidence of the beginning of remorse.

R v Howard and others (1992) 29 NSWLR 242
Eight offenders set upon a victim who they lured to them and inflicted injuries from which he died. Four pleaded guilt to manslaughter and one was convicted by a jury of that offence. The other 3 were found guilty of murder. With the exception of one, Young, it was difficult to differentiate between the 8 in terms of their culpability, all having been engaged in a joint enterprise. All showed contrition and a willingness to seek rehabilitation. The 3 convicted of murder and J appealed against sentence but this Court declined to interfere. The intention of those convicted of murder was to inflict grievous bodily harm. (It is only the sentences for murder which are relevant here but all are included for completeness.)

L, aged about 16½ at the time of the offence and who pleaded guilty to manslaughter was sentenced to a minimum term of 7 years and an additional term of 2 years. He had no prior convictions and his subjective circumstances were extremely favourable.

F, aged 16, pleaded guilty to manslaughter. He had a :tragically deprived” background and gave evidence against others. He was sentenced to a minimum and additional terms of 4½ years and 2 years.

C, aged 16¾ years, pleaded guilty to manslaughter. On probation at the time of the offence, he had a significant record, although he had made a significant effort in custody. He was sentenced to minimum and additional terms of 8 years and 2 years.

J, aged about 16½ years, pleaded guilty to manslaughter. His subjective circumstances were very favourable and, belatedly, he offered to give evidence . He was sentenced to minimum and additional terms of 5½ and 2½ years.

Young was convicted of manslaughter. He was aged 17¾ years, his subjective circumstances were favourable. He was not involved in the planning and there was doubt as to the extent of his involvement. He was sentenced to minimum and additional terms of 5 and 3 years.

Mihailovic, convicted of murder, was aged almost 18½. His physical contribution was limited to a punch and 1 or 2 kicks to the victim’s body. His subjective circumstances were very favourable. This Court remarked that “his age, whilst plainly attracting leniency, does not have the compelling significance of the ages of F, J, C and L”. He was sentenced to minimum and additional terms of 10 and 8 years.

Morgan, convicted of murder, was aged 17¼. He would seem to have been shown to have played a greater part than some or all of the others, including stamping on the head of the victim. His subjective circumstances were reasonable or good and he was regarded as having considerable potential. He was sentenced to minimum and additional terms of 10 and 8 years.

Howard, convicted of murder, was aged a little over 18. He was not involved in any premeditation and his involvement was impulsive. He left the scene when he thought the others were going too far. He had a minor criminal record but otherwise good subjective circumstances. He was sentenced to minimum and additional terms of 8 and 5 years.

R v Heron [2000] NSWCCA 312
This offender killed his victim by stabbing him during a fight in an hotel. This Court refused to interfere with a sentence of minimum and additional terms of 14 and 4 years imposed by Sully J after conviction by a jury. Sully J found that the intent was to do grievous bodily harm. The offender had had a sadly disadvantaged and troubled life and for a substantial part of it had lived in circumstances where violence was commonplace and aggressive behaviour useful for both survival and reputation. The offender had surrendered to police.

R v Hungerford (unreported, Newman J, 17 August 1993)
This offender who had pleaded guilty was sentenced to penal servitude for a minimum term of 18 years and an additional term of 6 years for the murder of a stranger who he had come across and raped. He had intended to kill and did so by striking her a number of times on the head with a piece of concrete. His Honour took the sexual assault into account as an aggravating feature of the offence of murder.

At the time of the offence the offender was under the influence of alcohol. When sober he was pleasant and had no criminal record of consequence. He had a personality disorder which two psychiatrists described as borderline. He was remorseful. At the time of the offence the offender was 20 and Newman J recorded that “considerations of rehabilitation may be properly preferred to considerations of punishment and general deterrence”. His Honour also found that the victim was murdered to cover up the offender’s sexual attack on her.

R v Lowe (unreported CCA, 19 February 1992)
This offender was sentenced to a minimum term of 9 years penal servitude and an additional term of 5 years and 4 months following his conviction for murder. He had in addition been in custody for 15 months prior to trial. His offence consisted of ramming the head of a much smaller youth against a telegraph pole causing the latter’s death. The offender was aged 17¼ at the time and no prior convictions and was regarded as having good prospects of rehabilitation. The offence was not premeditated, the offender being affected by the prior ingestion of intoxicating liquor. Significance was placed on the fact that the intent of the offender at the time was to do grievous bodily harm. The offender had pleaded not guilty. The Court of Criminal Appeal increased the additional term at the expense of the minimum term imposed by Newman J.

R v Mills (unreported, CCA, 3 April 1995)
This Court upheld a sentence including minimum and additional terms of 16 and 7 years imposed by Wood J on an offender convicted of murder who had, during the course of an armed robbery of a liquor store, in the excitement or panic of the moment, discharged a shot-gun, killing the proprietor or store employee. The robbery had been pre-planned. The offender was 23, had no remorse and in the past had shown no interest in becoming rehabilitated. The 7 years of the additional term reflected the view that the offender would need support for a lengthy period of time after release. At least 2 judges of this Court rejected the proposition that felony murder involves a lower level of culpability than cases of murder involving an intention to kill.

R v Nelson (unreported, CCA, 25 June 1996)
The circumstances of this offence were that during the course of an altercation the victim was repeatedly punched and kicked by Paul and Maree Nelson to the extent that he was rendered unconscious. After half an hour or more he was trussed up and placed in the boot of a car. He was driven around various suburbs of Sydney for some 2 hours. The vehicle stopped, the deceased who had untied himself, was told to get out and he was then savagely attacked with a metal baseball bat. His head was effectively pulped.

Paul Nelson was regarded as having had an intention merely to inflict grievous bodily harm but it was a case where in that intention was regarded as reflecting similar criminality to other cases involving an intention to kill. He had pleaded guilty only after his trial had progressed for 1 week and there had been some co-operation with and assistance to the police. He had no prior history of violence.

This court declined to interfere with a sentence comprising a minimum term of 14 years and an additional term of 7 years. McInerney J, with the concurrence of Gleeson CJ and Studdert J, did however say that the sentence was at the top of the range. The age of the offender is not disclosed in the report.

R v Robinson (unreported, Hidden J, 15 October 1998)
This offender was sentenced to penal servitude for a minimum term of 15 years and an additional term of 5 years in consequence of his shooting - described by Hidden J as a spontaneous reaction - to some resistance by a store owner during the course of a premeditated robbery in company with others of a computer store. Taken into account were also charges of an armed assault on the victim and nine armed robberies of a staff member and customers which occurred at the same time and an additional aggravated armed robbery about 1 week earlier.

The offender was 19 at the time of the offence, had no significant criminal history and would seem to have been led into the venture by a gambling habit. He had pleaded guilty but only after unsuccessfully challenging the admissibility of confessional evidence. A deal of the sentence would be served on protection.

R v Sleiman (unreported, Sperling J, 27 August 1999)
This offender who had pleaded not guilty was sentenced to penal servitude for a minimum term of 16 years and an additional term of 5 years and 4 months for murder, an offence of malicious wounding being also taken into account. Sperling J said that the murder alone merited a sentence of terms of 15 and 5 years. The offender had lunged at the victim with whom he had had some disagreement earlier, stabbing him twice in the chest. However Sperling J said that he was unable to ascribe a motive to the event. His Honour sentenced on the basis that the Offender’s actions were impulsive and that his intention was to cause grievous bodily harm.

The malicious wounding was occasioned when the Prisoner discharged an air rifle from his home at a postman. Sperling J said that this offence considered in isolation, merited minimum and additional terms of 2½ years and 10 months respectively.

The offender was 19 at the time of the main offence and Sperling J noted that this called for some element of leniency. The offender felt no remorse and had a significant record over the preceding 3 years. His Honour recorded that protection of the community from a man he assessed as very dangerous was an important consideration.

R v VRK (unreported, CCA, 27 May 1996)
Allowing an appeal from a re-determination under Section 13A of the Sentencing Act, this Court imposed a sentence consisting of a minimum term of 14 years and an additional term of 6 years. At age 21 he had “appallingly beaten” a 2 year old child of his de facto wife in circumstances of anger and loss of temper. The offender had some criminal history which did not loom large and the matter was dealt with on the basis of an intent to inflict grievous bodily harm rather than an intent to kill. He had pleaded “not guilty”.

R v Webster (unreported, CCA, 15 July 1991)
This Court refused to interfere with a sentence of a minimum and additional terms of 14 and 6 years imposed by Wood J. When a young girl the offender was trying to rape had resisted him, he lost his temper and crushed her head with a rock. Asked why, he had said “I didn’t want to get in trouble. Can you believe that. I thought she would squeal on me for trying to rape her.” It was accepted that the disinhibiting effect of alcohol and drugs had played a part but this Court said that the crime was not impulsive but “the culmination of an increasing surrender to self gratification and an increasing abandonment of any consideration for (the victim’s) welfare, and, finally, for her life.”

The offender was 18 at the time of the offence, he was remorseful, had pleaded guilty and was regarded as having favourable prospects of rehabilitation. This Court said that “in the case of a young offender with good prospects of rehabilitation, the element of rehabilitation will weigh heavily with a relative decreasing of the effective weight of the element of the need to deter others.”