R v Kehoe and Pemberton

R v KEHOE and PEMBERTON
[2000] SASC 119

Court of Criminal Appeal: Doyle CJ, Mullighan and Bleby JJ

DOYLE CJ: I agree with the orders proposed by Bleby J, and with the reasons that he gives for making those orders. There is nothing that I wish to add to those reasons.
MULLIGHAN J: I agree that the appeal should be allowed for the reasons given by Bleby J and I agree with the orders which he proposes.
BLEBY J: The appellants are two of five young people who pleaded guilty before a Judge of this Court to the brutal murder of Tracey Muzyk, the murder having taken place on 10 December 1996 at Royal Park. A sixth person, a girl aged 15 at the time, who participated in some of the events leading to the death, pleaded guilty to and was sentenced for assaulting the deceased and occasioning her actual bodily harm.
The offence of murder carries a mandatory life sentence: s 11, Criminal Law Consolidation Act 1935. Nevertheless, the sentencing judge has a discretion as to the setting of a non‑parole period and as to the length of that non‑parole period: s 32(1)(c), s 32(5)(c), Criminal Law (Sentencing) Act 1988.
All five defendants guilty of murder were sentenced to life imprisonment commencing on 20 December 1996, the date upon which they were taken into custody. The two present appellants appeal against the non‑parole periods fixed by the sentencing judge.
Because of successful appeals against the fixing of their non‑parole periods by two of the other defendants, it is necessary to make some brief reference to the respective roles of each of the defendants, to the non‑parole periods fixed by the sentencing judge and to the circumstances and result of the earlier appeals.
I gratefully adopt from the reasons for judgment in R v Austin and McKenzie (1999) 74 SASR 591; [1999] SASC 498 the description by the Chief Justice of the circumstances in which Tracey Muzyk was killed:
“Tracey Muzyk was 18 years old when she was murdered. Her body, which was concealed in a large tree and covered with grass clippings, was found in a paddock on the morning of Saturday 14 December 1996. Due to the delay of four days between the time of death and the discovery of the body, and consequently the state of the body when it was found, the exact cause of death could not be determined. The evidence was sufficient to establish that she had suffered blunt head and facial trauma, indicating blows of considerable force, stab wounds in her neck, and neck compression brought about by hanging or strangulation. Based on the autopsy the probable time of death was the early hours of Tuesday 10 December 1996.
The incidents which form the basis of the charge of murder commenced on the evening of 9 December 1996 and continued into the early hours of 10 December. Knowledge of what occurred during this period has been gleaned from admissions made by most of those charged.
The events, aptly described by the learned sentencing judge as a “sustained series of assaults which warrant the description of torture”, began at a house in Wilson Street, Queenstown. The appellants and others were at the house, as was Ms Muzyk. A dispute arose over an amount of about $70 that Ms Muzyk owed to one of the group. The dispute led to members of the group hitting and slapping Ms Muzyk. Ms Muzyk was repeatedly punched and kicked, flicked with wet tea towels, burned with cigarettes, boiling water was poured over her body on several occasions, mace was sprayed into her face and her head was shaved. The contribution of each of the accused to these incidents, and the length of time for which they were present at the house varies, however each of them was a party to the physical abuse to which Ms Muzyk was subjected.
At some stage, following some hours of this torture, a decision was made to kill Ms Muzyk out of fear that she would report to the police the incidents which had occurred at the house. From the house Ms Muzyk was taken to a nearby paddock where the assaults continued. A stardropper was used in an attempt to inflict further injury on her, she was stabbed with a knife, a large rock was dropped on her head and a rope was tied around her neck and then tied to a tree, in an attempt to strangle her.
The cause of Ms Muzyk’s death could not be identified. It could have been the result of stab wounds to the neck, it could have been the result of injuries to the head, and it could have been the result of strangulation.
Whatever the cause of death, the appellants and the other offenders subjected Ms Muzyk to a prolonged and savage beating. As the sentencing Judge said, the cruelty inflicted on Ms Muzyk makes one wonder ‘how a group of young people could be so cruel to another human being’.”
All defendants came from dysfunctional families. All but the appellant Pemberton survived broken and unsettled parental relationships. Pemberton, after violent altercations with her parents, left home of her own volition at the age of 16, having not completed Year 10 at school. All the defendants had left school by the end of Year 9 or Year 10 or earlier. All of them were heavily involved in drug‑taking, and all were of below average intelligence. None were in settled employment, and all of them were leading somewhat nomadic existences.
All of them initially denied their involvement when interviewed by police. However, within a matter of weeks all of them except Pemberton had given full, if somewhat conflicting, confessional accounts of the events to the police. Pemberton’s account was given shortly after entry of a plea of guilty at her committal some six months later. She was the first to enter a plea of guilty. The others did not formally plead guilty until November 1997, shortly before voir dire hearings preliminary to their trial were due to commence.
Matthew Austin was aged 20 at the time of the offence. He had an anti‑social personality disorder of moderate severity and had previously committed some offences of dishonesty. He joined in various assaults on the victim at the house, including hitting her on the face and body, spraying a tin of mace in her face and cutting her hair. In the paddock, he joined in kicking the victim and assisted in arranging the rope across a branch of the tree after it had been put around the victim’s neck. He thrust the stardropper into her throat. The sentencing judge, after allowing a reduction of two years for the plea of guilty, fixed a non‑parole period of 22 years.
Ian Bruce McKenzie was aged 18½ at the time of the offence. He did not appear to have had any specific psychiatric or psychological disorder. He too had committed various offences of dishonesty. He was involved in the assaults on the victim at the house and continued when the group moved to the paddock. He tried to stab the victim with the stardropper. He assisted in picking up the rock and in dropping it on the victim’s head. He stabbed her to try and kill her. He played what the sentencing judge described as “a significant role” in the victim’s death. After allowing two years’ credit for the plea of guilty, his non‑parole period was also fixed at 22 years.
Lyle Bascombe was aged 17 at the time of the offence. He did not suffer from any mental illness or psychiatric disorder. Although he had been in trouble with the police before, he had no record of violence. He joined in the assault at the house and kicked the victim while she was in the house on her knees, including kicking her in the face. He continued in the assault whilst she was in the paddock by jumping on her. He went and found the rope and stardropper, and he also provided the knife which McKenzie used. He too was allowed a reduction of two years for his plea of guilty. His non‑parole period was fixed by the sentencing judge at 18 years.
The appellant Kehoe had just turned 18 at the time of the offence. Prior to the age of 12 she had been sexually abused by her father and several of his family over a period of six years. She had received no support from her mother, whose friends had also abused her. She felt isolated and that she could trust no‑one. She had made at least one suicide attempt. She was “psychologically damaged”, and since the age of 12 had been living in refuges, with friends or on the street. She had no recorded criminal history, but described herself, when living in Sydney, as a “full on junkie”. She played an important role in the assaults at the house, hitting and punching the victim, flicking her with knotted wet towels, cutting her hair and tipping boiling water on her while she lay on the kitchen floor. According to the sentencing judge, although part of the joint enterprise to kill the victim in the paddock, she did not personally inflict injury there. On her own admission she was party to hitting the victim there with her hand, but her role there was significantly less than that of the others. After allowing a two year reduction for the plea of guilty the sentencing judge fixed her non‑parole period at 18 years.
The appellant Pemberton was aged 17 at the time of the offence. She had no previous convictions, but a long history of behavioural problems and an unsettled life. She seems to have been diagnosed as having an attention deficit disorder with hyperactivity, but she did at the time not have a formal psychiatric disorder. She was nevertheless subject to violent mood swings which required medication from time to time. She too became involved in the assaults at the house. She held the victim whilst her forehead was burnt with a cigarette. At various times she hit the victim and kneed her. Whilst at the paddock she stood on one of the victim’s hands while the large rock was dropped on her head. She also hit the victim with the stardropper. The sentencing judge took the same commencement point as he did with Kehoe, but was impressed with her early plea of guilty and subsequent full confession and offer to provide assistance. He allowed a 25 per cent deduction on that account and fixed a non‑parole period of 15 years.
It is not necessary for present purposes to consider details of the involvement and penalty of the sixth offender who pleaded only to assault occasioning actual bodily harm.
Austin and McKenzie appealed against their sentence to the Court of Criminal Appeal. The sentencing judge had said in relation to all five of the offenders:
“In the case of the five of you who have pleaded guilty to murder, the difficult question of imposing a non‑parole period for young persons arises. I accept the view expressed by Cox J in the case of Moyle, that the tendency to lengthen the non‑parole period in the case of youthful offenders can be set off to a certain extent by a person’s relatively young age and the immaturity which may accompany it and does accompany it in the case of each of you.”
The view expressed by Cox J was contained in R v Moyle (1996) 186 LSJS 462 at 462. In Inge v The Queen (1999) 166 ALR 312; [1999] HCA 55 the High Court held that that approach was erroneous. It was improper to attempt to fix a non‑parole period based on the term of the offender’s natural life and to fix that term based on the offender’s life expectancy. The majority reaffirmed what the Court had said in Bugmy v The Queen (1990) 169 CLR 525 concerning the exercise of the discretion in fixing a non‑parole period and concluded (at [12]):
“The seriousness of the offence which has been committed, and the severity of the mandatory penalty provided by statute, are matters to be taken into account in fixing a non-parole period, but it does not follow, either as a matter of logic, or as a matter of the proper exercise of the discretion considered in Bugmy, that the relative youth of an offender counts against the offender.”
This Court therefore felt constrained to allow the appeals of Austin and McKenzie and to exercise afresh the discretion in fixing the non‑parole periods. I should add that Inge v The Queen was decided after the sentencing judge had fixed the non‑parole periods.
The majority of the Court (Doyle CJ and Mullighan J) considered that the non‑parole period fixed did require intervention, and that it was likely that the judge’s reliance on R v Moyle had caused him to impose a higher sentence than would otherwise have been imposed. The majority not only fixed a lower starting point in relation to both Austin and McKenzie, but considered that they were entitled to a greater discount than the sentencing judge had allowed in respect of their pleas of guilty. They noted that each of the appellants had admitted to the police his involvement in the death at an early stage. In the case of Austin in particular there was good reason why he should not have admitted his guilt until after a full investigation of a possible defence of mental impairment. That did not apply to McKenzie, whose plea was also late but who had also made earlier admissions. The Court was satisfied, however, that there were indications of genuine remorse and contrition. The majority added:
“In the light of the early admissions to the police, the evidence of genuine contrition, and the fact that ultimately a trial was avoided, there is a sound basis for the exercise of leniency, notwithstanding the lateness of the plea of guilty. There is another factor worthy of consideration. For a young person in particular, the plea of guilty to a charge of murder is a momentous decision. The seriousness of the decision, and its implications, are such that a delay in facing up to the offender’s involvement in the offence of murder, and to the offender’s guilt, is more understandable in the case of a young person than it otherwise might be. To say this is not to reject the views expressed by King CJ in The Queen v Slater (1984) 36 SASR 524 at 525-526, relating to the reduction in sentence to be awarded when a plea of guilty is entered late. It is, rather, to recognise the circumstances of the present case.”
The majority considered that the starting point in each case should be 22 years. In both cases that was reduced to a period of 18 years after allowing for the plea of guilty.
The error identified by the Court in relation to both Austin and McKenzie is an error that was common to the sentencing of all five defendants. Accordingly, it is necessary to reconsider also the non‑parole periods imposed in respect of the present appellants and to do so in a manner which ensures that there is no marked disparity between the non‑parole periods so fixed and those now fixed in relation to Austin and McKenzie, having regard to the different circumstances of the co‑offenders and the different degrees (if any) of their criminality: Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 301 ‑ 302.
Both the sentencing judge and the majority of the Court of Criminal Appeal considered that Austin and McKenzie were equally responsible for the death of the victim, and obviously considered that their personal circumstances did not warrant differentiation in the fixing of their respective non‑parole periods. That is not to say that there were not differences between them, but taken overall they deserved the same sentence. Their starting points were the same. They were afforded the same discount for their plea - by the majority of the Court of Criminal Appeal, 4 years, or approximately 18 per cent.
The sentencing judge graded the starting points for the non‑parole periods that he fixed, and then made adjustments for the pleas of guilty and contrition. On that account he gave the same period of reduction to each of the defendants except Pemberton. To her he gave a greater credit for reasons which I will come to.
The one error of the sentencing judge identified by the appeal court in Austin and McKenzie was one which affected all the defendants in the same manner. They were sufficiently close in age for differences based on what was said in R v Moyle not to result in any material differences in sentence. Therefore, that identified error cannot have been responsible or have played any part in the grading of the sentences by the sentencing judge as between the defendants.
This Court is now free to impose its own sentence in each case, and is not necessarily bound by the relativity selected by the sentencing judge. However, if there was justification for such differentials, and the degree of differentiation was within the discretion of the sentencing judge, this Court should nevertheless be slow to depart significantly from the relativities thus set. Whilst it is not appropriate to undertake a precise mathematical calculation, in the absence of any other identifiable error, this Court should now make an appropriate adjustment to the sentence of these appellants, taking into account the new sentences fixed for Austin and McKenzie.
It is tempting to fall into the trap of comparing a number of different aspects of the offending in each case and the antecedents and personal circumstances of the offenders, in order to try and identify with some degree of mathematical precision those factors which give rise to the differentials. Mr Caldicott, counsel for Kehoe, after examining the respective ages of the offenders, particularly that of Bascombe, submitted that the disparity in starting points was not explicable by reference to age. He therefore sought to justify the differences by reference to some other identifiable factors. However, in doing so one can become too mathematically precise.
It is sufficient to say that as between Austin and McKenzie on the one hand and the two present appellants on the other, there was a material age difference and at a critical stage in the defendants’ adult formation. The weighting that that factor should have in a given case will depend on the sentencing judge’s assessment, among other things, of the maturity and understanding of each defendant as well as his or her biological age. I have little doubt that age differences and related factors played some part in the sentencing judge’s decision.
There was also an appreciable difference in roles, particularly in the paddock, where the male defendants appeared to have undertaken more of the leadership role. However, that is not to underestimate the part played by the other defendants, particularly at the house.
There was a difference in criminal antecedents between both Austin and McKenzie on the one hand and the present appellants on the other. There were the appalling family circumstances, particularly affecting the appellant Kehoe. In respect of the appellant Pemberton, there was a long history of behavioural problems and the attention deficit disorder.
I am satisfied that, based on these differences, the sentencing judge was justified in taking a different starting point in respect of these two appellants from that which he took for both Austin and McKenzie. I might not have adopted the same differential. It was a particularly difficult and complex sentencing task which faced the sentencing judge. It would be surprising if all judges were to reach the same conclusion. Nevertheless, all that matters for present purposes is that some differential was justified.
Ms Kelly argued, for the respondent, that, given roughly similar backgrounds, it is difficult to apportion degrees of culpability for a crime of such horrendous proportions, in which all were willing participants. To that she added the reminder that in crimes of considerable gravity and violence involving adult‑like behaviour, considerations of rehabilitation normally applicable to young offenders must give way to the protection of the community, to community revulsion at such a shocking crime and to obvious elements of deterrence: R v Lumsden [2000] SASC 49 per Martin J at [27] ‑ [28], citing with approval Wood CJ at CL in R v Tran [1999] NSW CCA 109. Given these factors, Ms Kelly submitted that all should have the same starting point.
There is considerable force in those arguments. However, not only am I satisfied that there was justification for the sentencing judge’s approach, but I consider that some allowance must be made for the factors I have mentioned. I do not think that I would have fixed as great a difference as the sentencing judge did. In deference to the powerful arguments of Ms Kelly, I think there is a case for compressing the relativities. In the light of the starting point now taken for Austin and McKenzie, I would take as a starting point for both the present appellants a period of 19 years. Although I have fixed the same starting point for both, I do so with some hesitation. I mention that because it may have a balancing effect when I come to consider the appropriate discounts for pleas of guilty. My hesitation is that in some respects Ms Pemberton played a slightly greater role, especially in the paddock, than Ms Kehoe, and she does not have quite the disturbing background that Ms Kehoe has.

To that starting point I must apply an appropriate discount for the respective pleas of guilty and degrees of contrition shown. As with the sentencing judge, I see no reason to differentiate in Ms Kehoe’s case from that allowed to both Austin and McKenzie. Hers was a late plea following shortly on those of Austin and McKenzie. However, whereas the sentencing judge deducted a uniform amount in each case (2 years), I would be more inclined to reduce the period by a similar percentage to that ultimately fixed in relation to Austin and McKenzie. On that basis I would fix a non‑parole period for Ms Kehoe of 15 years and 6 months.
In the case of Ms Pemberton, the Director of Public Prosecutions conceded before the sentencing judge and before us that she was entitled to a greater discount than the others. She was the last to make a full confession to the police, but the timing of her plea was significant in a number of respects. She pleaded guilty at her committal and offered to give evidence against the other defendants. That was followed shortly after with a full confession and statement provided by her with legal assistance. Her plea and the offer to give evidence were made before she fully knew and was able to assess the strength of the Crown case against her. She did so at a time when, although the other defendants had made confessions, none had offered to give evidence against any of the others. It was also at a stage at which at least two and, at that stage, possibly more defendants were intending to challenge the admissibility of those confessions. As it happened, two such challenges were about to be mounted (by Kehoe and Bascombe) when Austin offered to plead guilty and to give evidence against the others. The other pleas then followed shortly after.
Had those challenges continued, and had they been successful, Ms Pemberton’s offer to give evidence would have become highly relevant to the prosecution. In the way that things unfolded between their arrest and intended trial, what she did was a bold and significant move on her part, given her youth, and knowing that she was thereby committing herself to a long period of imprisonment with people, many of whom are less than sympathetic to colleagues who cooperate with the police.
Taking all the circumstances into account I would fix a non‑parole period for Ms Pemberton of 14 years. There must be more than a token differential between the sentences to be served by Ms Kehoe and the others, on the one hand, and Ms Pemberton, on the other hand. That differential must be sufficient to reward her for her early courageous plea and cooperation, and to encourage others to do likewise in similar circumstances. However, if I appear to have been less than generous in the discount for her plea in the circumstances I have described, it is due in part to the hesitation that I have in the first place in taking the same starting point as Ms Kehoe, coupled with the fact that for a crime of such serious proportions and brutality, there is a minimum below which, whatever the circumstances, one cannot really go. Ms Kelly urged that this was at least 15 years. One cannot be too rigid about things like that. What is the acceptable minimum in a given case will depend on a great many circumstances.
This case was indeed a brutal murder. It was not committed in a decisive short‑lived episode of rage or passion. It was committed with calculated intent over a number of hours, during which the victim suffered agonising torture - a most horrifying crime. That is the only justification, but a compelling one, for such a relatively young person being required to serve a sentence of that order. In all the circumstances of this case I consider that justice will be done in setting the level that I have. Furthermore, I consider that as between all appellants, a fair and just balance has been achieved.
I would therefore allow the appeals and set aside the non‑parole periods fixed by the sentencing judge. I would fix a non‑parole period for Ms Kehoe of 15 years and 6 months and for Ms Pemberton of 14 years.

[2000] SASC 119

11 May 2000