R v Lewis

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R. v. Mark LEWIS [2001] NSWCCA 448

FILE NUMBER(S):
60724/99

HEARING DATE(S): 23 October 2001

JUDGMENT DATE: 09/11/2001

PARTIES:
Regina - respondent
Mark Lewis - appellant

JUDGMENT OF: Hodgson JA Barr J Greg James J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70075/97

LOWER COURT JUDICIAL OFFICER: Ireland J

COUNSEL:
Mr. P. Boulton for appellant
Mr. P. Berman SC for Crown

SOLICITORS:
Joanne Harris for appellant
S.E. O'Connor for Crown

CATCHWORDS:
CRIMINAL LAW - Murder - Appeal against conviction - Whether verdict unreasonable - Appeal against sentence - Life sentence - Whether aggravating feature that appellant knew the victim's death would deprive five children of their mother. D.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1991, s.61

DECISION:
See par.72 of judgment

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60724/99
HODGSON JA
BARR J
GREG JAMES J

Friday 9th November 2001.

R. v. Mark LEWIS
Judgment

HODGSON JA:: On 19th November 1999, after a trial lasting fourteen days, the appellant Mark Lewis was found guilty by a jury on two charges: first, that on 14th February 1994 at Gladesville in the State of New South Wales he did murder Kerrie Pang; and second, that on 14th February 1994 at Gladesville in the State of New South Wales he did murder Fatma Ozonal.
The appellant was sentenced on 9th June 2000. For the murder of Kerrie Pang, he was sentenced to life imprisonment. For the murder of Fatma Ozonal, he was sentenced to eighteen years imprisonment, commencing on 28th April 1999 and expiring on 27th April 2017. A non-publication order was made to protect the identity of the son of the appellant and Ms. Pang.
The appellant appeals from his conviction, and seeks leave to appeal from the sentence.
The Crown case was that the appellant participated in a joint criminal enterprise with Lindsay Rose to murder the appellant’s de facto Ms. Pang, in the course of which Ms. Ozonal was also murdered. The Crown case was that there was a third participant in the enterprise, namely Ronald Waters, who assisted Rose to obtain access to the premises where Ms. Pang was murdered.
Before considering the case on appeal, it is convenient to first outline the circumstances clearly established by evidence at the trial.
CIRCUMSTANCES CLEARLY ESTABLISHED
The deceased Kerrie Pang had been the appellant’s de facto for three to four years before her murder. The appellant and Ms. Pang had a fifteen month old son; and Ms. Pang also had four sons from previous relationships. The appellant and Ms. Pang were living together in a rented house in Cherrybrook.
On the basis of the appellant’s own statements to police and of evidence which was substantially unchallenged at the trial and on appeal, the following events occurred on 14th February 1994. The timing of the events was firmly established by records of telephone communications from and to the mobile phone of Ms. Pang.
At 5.30pm, Ms. Pang was at her business premises “Kerrie’s Oasis” at 4 Flagstaff Street, Gladesville, at which she conducted a “relaxation centre” or massage parlour. Also there was an employee Ms. Ozonal.
At that time, the appellant Mark Lewis was at his business premises in West Ryde, where he conducted a similar business. Also at these premises was Chris Lee, another employee of Ms. Pang’s business, who was helping out in the appellant’s business on that day.
Between about 5.30pm and 6.30pm, Ms. Pang was on the telephone to one Trevor McIvor. During that phone call, the appellant telephoned Ms. Pang and said words to the effect that he was not feeling well, and asked if Ms. Pang would come and pick him up at West Ryde and take him home. There may have been more than one such call from the appellant to Ms. Pang interrupting her telephone conversation with Mr. McIvor: in any event, one such call was probably made around 6.15pm.
Ms. Pang then drove to West Ryde. It appears that she had left Kerrie’s Oasis by 6.26pm, because there was a call from her mobile phone to Kerrie’s Oasis at that time, and another such call at 6.30pm. At 6.31pm, there was a call from Ms. Pang’s mobile phone to the appellant’s private line at West Ryde, presumably to advise that she was on her way.
Ms. Pang arrived at the appellant’s West Ryde premises about 6.48pm. At that time, there was another call from Ms. Pang’s mobile phone to the appellant’s private line at West Ryde, presumably to tell him she was about to arrive.
When Ms. Pang arrived, the appellant told her he had received a phone call in which the caller said he would kill Ms. Pang. At about 6.50pm, Ms. Pang telephoned Ryde Police Station and spoke to Sergeant de Belin, and told him about the death threat. The appellant also spoke to Sergeant de Belin. Ms. Pang told Sergeant de Belin that she wished to speak to Detective Letchford about the matter, and was told that Detective Letchford was with the Chatswood Police. Ms. Pang then left a message for Detective Letchford with the Chatswood Police.
At about 7.00pm, Ms. Pang and the appellant left West Ryde to drive to Kerrie’s Oasis, each in her and his own car, the appellant’s being a white Tarago van. At 7.11pm, there was a call from Ms. Pang’s mobile phone to Kerrie’s Oasis, presumably to advise Ms. Ozonal that she was on her way back to Kerrie’s Oasis. At 7.18pm, there was a call from Ms. Pang’s mobile phone to the West Ryde premises, where Ms. Lee remained, in which, according to Ms. Lee, Ms. Pang asked if everything was alright there.
According to the appellant, he and Ms. Pang stopped at a shop on the way to Kerrie’s Oasis to get bread, butter and tuna.
Both cars were then parked in the car park at Kerrie’s Oasis, at a time which must have been very close to 7.20pm. Both Ms. Pang and the appellant stood beside the appellant’s car while a bag containing a .22 rifle was taken from the boot of the appellant’s car. They both walked to the door of Kerrie’s Oasis, and it is clear that Ms. Pang went inside. According to the appellant’s statements to police, he did not go inside, but returned to his car and drove back to West Ryde.
At about the time when Ms. Pang came to the door of Kerrie’s Oasis or possibly shortly afterwards, inside Kerrie’s Oasis, Ms. Ozonal was shot three times and killed by Rose, in the presence of Waters. A little later again, inside Kerrie’s Oasis, Ms. Pang was shot and stabbed many times and killed.
A neighbour heard a single gunshot at a time she estimated to be about 7.15pm. In fact, if this was one of the eight shots or thereabouts fired inside Kerrie’s Oasis, it must have been between about 7.20pm and 7.30pm.
After the two people had been killed, the killer or killers set fire to Kerrie’s Oasis. Smoke was observed coming from Kerrie’s Oasis at about 7.30pm, and fire fighters arrived at 7.42pm.
The appellant arrived back at West Ryde at a time Ms. Lee estimated to be about 8.00pm, and certainly it must have been after 7.30pm.
The appellant remained at West Ryde until about 9.00pm with Ms. Lee. They then closed the premises and left. The appellant drove to Kerrie’s Oasis, arriving at about 9.15pm. When told of Ms. Pang’s death, he collapsed and was taken to hospital.
The appellant made a statement to the police that night, and there was a recorded interview early the next morning. These statements were consistent with the above account up to the time of the appellant going to the door of Kerrie’s Oasis with Ms. Pang, except in relation to the times of the occurrence of the various events that I have referred to. According to the appellant, when the rifle bag was taken from the boot of the car, Ms. Pang wanted to take it, the appellant decided she should not, and the appellant put the rifle back into the van. According to the appellant, he and Ms. Pang walked to the entrance, Ms. Pang went inside, the appellant went back to the car and drove back to West Ryde, arriving, according to the appellant’s statements, between about 6.00pm and 6.30pm – that is, more than one hour before the time when the appellant actually got back to West Ryde.
Lindsay Rose pleaded guilty to the murders of Ms. Pang and Ms. Ozonal, and was sentenced to life imprisonment for those and other murders on 3rd September 1998.
Ronald Waters was charged with the murders of Ms. Pang and Ms. Ozonal. On 7th May 1999, he pleaded guilty to two counts of being an accessory after the fact to the murders, and was sentenced to concurrent terms of eighteen months imprisonment, to be served by way of periodic detention. The murder charges were not pursued.
OTHER EVIDENCE AT THE TRIAL
There was police evidence that a .22 rifle in a burgundy bag was found inside the appellant’s Tarago van. There was forensic evidence that eight shots fired in Kerrie’s Oasis came from the same .22 weapon, which was not the weapon found in the appellant’s van.
There was forensic evidence concerning blood stains found on the rifle bag: some of these matched Ms. Pang’s grouping, and also Ms. Pang’s DNA. There was a blood stain inside the bag that did not match Ms. Pang’s blood or the appellant’s blood.
There was evidence of small brown spots on the appellant’s right running shoe, brown shorts, and shirt worn that night. In relation to these spots, the preliminary or screening test for blood was positive, although the spots could, on the basis of that test, also be from a chemical or protein source. DNA matching that of Ms. Pang was found on these items, although it could have been DNA from skin cells, sweat or saliva rather than from blood.
A number of witnesses called for the prosecution testified that the relationship between the appellant and Ms. Pang was volatile, and characterised by jealousy and arguments. One witness gave evidence that, three days before her death, Ms. Pang told her that she wanted out of the relationship with the appellant, and was asking him to pay $500.00 per week for a nanny for their son.
However, evidence was called for the appellant about the relationship, including evidence that Ms. Pang said to a witness, about a week before her death, that she loved the appellant “with all his faults”; that the appellant was never observed to be a violent or threatening man; and that on 5th November 1993, Ms. Pang consulted a gynaecologist about attempts to have another baby.
There was also evidence that Rose and Ms. Pang had been in a relationship, prior to Ms. Pang’s relationship with the appellant; and evidence that Rose hated Ms. Pang.
The appellant did not give evidence at the trial. Rose did not give evidence. The murder weapon and the knife used to stab Ms. Pang were not produced in evidence.
A crucial witness for the prosecution was Waters, who gave the following evidence.
He gave evidence of accompanying Rose, with whom he was acquainted, to the premises at 4 Flagstaff Street, Gladesville on 14th February 1994. The role Waters was to play was to present himself at the door of the premises and speak to the person who answered the door, in order to gain access for both men to the premises. Rose offered Waters $500.00 to perform this role.
They met at the Burwood RSL at around 6.00pm on that day, although the meeting was not pre-arranged. Rose asked Waters if he would help him out, and Waters agreed. They went from the RSL to Rose’s home, where they got into Rose’s vehicle and drove to Gladesville. Rose spoke to someone on his mobile phone during the drive.
Rose parked his car in a cross-street and they went to the premises. Waters knocked on the door, which was answered by Ms. Ozonal, while Rose hid with his back against the wall. Ms. Ozonal let Waters in, and Rose followed him with a pistol, and started yelling at Ms. Ozonal, demanding to know the whereabouts of Ms. Pang, to which Ms. Ozonal responded that she was at the doctor’s office with her husband. Rose then took the phone off the hook and directed Ms. Ozonal into another room, while telling Waters to stand at the window and keep a lookout for the arrival of any personal vehicle.
Subsequently, Waters looked out the window and saw a man and a woman walking away from two vehicles towards the premises. Waters informed Rose of this, and then saw Rose shoot Ms. Ozonal in the head.
On Rose’s direction, Waters went into another room and hid. From his position he could see into the reception area of the premises. Rose went into another room. Waters heard the door open and heard Ms. Pang calling out to Ms. Ozonal. Ms. Pang moved down the hallway as though she had been pushed or was running. Ms. Pang saw Rose and said words to the effect that there was no need for him to be there, that everything had been settled. Rose responded by saying that it was “too late”, that he had shot Ms. Ozonal and she would have to be killed as well.
Waters then left the room in which he had been hiding and noticed the man who he had seen coming to the premises with Ms. Pang in the doorway of one of the rooms holding a rifle. Waters struck him, disarmed him and tackled him to the ground. According to Waters, Rose then said “Don’t hurt the man. He is paying for the job”.
Rose and Ms. Pang struggled over Rose’s pistol. Waters went to help Rose by striking Ms. Pang to the face three times. Ms. Pang fell to the floor, then got up and ran down the hallway towards the back of the house while Rose picked up a silencer that had come off the pistol. The other man said to Rose “hurry up and get it over and done with” on more than one occasion, and Rose followed Ms. Pang towards the rear of the premises. When Rose returned he told Waters and the other man to leave as the house was on fire.
The three men then left the premises, Waters being told to leave the main door open to enable the fire to spread more effectively. The other man carried his rifle in a rifle bag. They walked towards the man’s van, which was a Tarago. The man placed his rifle bag in the mid section of the van. Rose advised the other man to go home and wait for the police to contact him, and then to feign a heart attack on being told of Ms. Pang’s death. Rose and Waters then left in Rose’s car.
APPEAL ON CONVICTION
The appellant appeals from his conviction on the ground that the verdict of the jury was unreasonable, cannot be supported having regard to the evidence, or otherwise represents a miscarriage of justice. The appellant was unrepresented on this aspect of the case.
Submissions
First, Mr. Lewis submitted that it was highly improbable that the events would have occurred as described by Waters. He submitted that, if he had organised Ms. Pang’s murder, surely he would have arranged an alibi and not been at the scene. Why would he have gone into the premises with her, and why would he have gone in with an empty rifle? In any event, he submitted there was no motive for him to arrange for Ms. Pang’s murder: although he objected to her participation in the activities of her business, this only gave rise to verbal arguments and never violence. He submitted also that the evidence at the trial showed that Rose hated Ms. Pang.
Next, Mr. Lewis submitted that Waters’ evidence could not be relied on. He told untruths in relation to scratch marks on his face and in denying that he went to a medical centre. He claimed that he struck the third person on the face as hard as he could, and struggled with that person; yet Mr. Lewis had no marks on his face, and none of Waters’ DNA on his clothing. Although Waters claimed to have taken the rifle from Mr. Lewis, Waters’ fingerprints were not found on the rifle. Waters’ descriptions of the third person changed from time to time, and they never included obvious features of Mr. Lewis’ own appearance, such as glasses and prominent teeth.
Next, in relation to the evidence concerning blood and DNA, Mr. Lewis submitted that it was not proved that there was any blood on his shorts, shirt or shoe; and although the blood on the outside of the rifle bag was probably from Ms. Pang, that on the inside of the rifle bag was from neither Ms. Pang nor Ms. Ozonal nor Mr. Lewis. There was no evidence as to how old the blood was. The DNA found on Mr. Lewis’ clothing could have been from skin cells or sweat or saliva.
Mr. Lewis submitted that he did not believe he had had a fair trial, and he submitted that the Court had not been given the true facts. Apart from Waters, the only person who knew what had happened was Rose, and he was not called for the prosecution. Mr. Lewis informed the Court that he had requested his legal advisers that Rose be subpoenaed, and was told that this could not be done. He also informed the Court that he was advised by his legal advisers that there was no need for him to give evidence, and for that reason did not do so. He submitted that the original brief delivered to him included evidence that the murder weapon had been supplied of and disposed of by a corrupt police officer; and yet no evidence about that had been led at the trial.
Finally, in his written submissions Mr. Lewis submitted that the statement which, according to Waters, Rose made to the effect that “he is paying for it” was hearsay.
Decision
Dealing first with the last submission, I note first that Mr. Lewis was represented by Senior Counsel at his trial, and no objection was taken to the piece of evidence referred to on the ground of hearsay, and no complaint was made about the trial judge’s directions concerning that matter. In my opinion, the evidence about Rose’s alleged statement was plainly admissible as part of the narrative of the events of the murders themselves, and the activities of Rose and Waters and the third man in relation to those events. In those circumstances, ss.60 and 136 of the Evidence Act became relevant. Those sections are as follows:
60 The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation
…
136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing.
The effect of s.60 is that the statement alleged to have been made by Rose did become evidence of what Rose had intended to assert, unless an order was made under s.136 limiting the effect which could be given to the statement. No application was made for any order under s.136.
In those circumstances, the admission and treatment of that material does not give a ground of appeal.
Some of Mr. Lewis’ submission seem to be to the effect that he would wish to have a trial in which further evidence could be led. That can be the basis for setting aside a conviction and ordering a new trial only if it is required in the interests of justice, because there is evidence which could well have made a difference to the result and in respect of which there is a satisfactory explanation why that evidence was not called. We have been shown no reason to think that evidence which Rose could have given would have made a difference to the result, nor that evidence concerning the murder weapon would have made any difference to the result. Furthermore, the circumstance that legal advisers representing an accused made forensic decisions in the course of a trial with the result that evidence was not called does not justify an appeal court ordering a new trial.
The submissions made by Mr. Lewis concerning the improbability of the Crown case against him were matters appropriate to be put to the jury, and for the most part, were put to the jury. I take them into account in relation to the appellant’s submission that the verdict was unreasonable, in conjunction with his submissions concerning the unreliability of Waters’ evidence.

In my opinion, the real question is whether, having regard to all the matters raised by Mr. Lewis, Waters’ account of the murders and of the role of the third person in them should have been accepted by the jury, so as to satisfy them beyond reasonable doubt that this third person was guilty of the murders.
If the jury could have been reasonably satisfied of this beyond reasonable doubt, there is in my opinion no possible doubt about the identification of the appellant as this third person, even though Waters was not able to identify the appellant. I say this for these reasons: Mr. Waters gave evidence of Ms. Pang and the third person walking from two cars parked side by side outside Kerrie’s Oasis minutes before the murders; the appellant had driven with Ms. Pang in two cars to Kerrie’s Oasis, arriving within about five minutes of the murders, and then walked with her to the door of Kerrie’s Oasis; after the murders, Waters said the third person put a rifle bag in a white Tarago van, being one of the two vehicles from which Ms. Pang and the third person had walked a few minutes earlier; so, in my opinion, it is inconceivable that a person other than the appellant could fit into this scenario.
Could a reasonable jury have been satisfied beyond reasonable doubt that the third person participated in the events as described by Waters? The elements of this participation included the following (accepting that the appellant was the third person): the appellant came into Kerrie’s Oasis, was present throughout, and left with Rose and Waters; the appellant participated in the events; Rose said that the appellant was paying for it; and the appellant said words to the effect “hurry up, get it over with”.
As to the first of those elements, the appellant coming into Kerrie’s Oasis, according to the appellant the whole purpose of getting Ms. Pang to come to West Ryde in the first place was to alert her to a death threat (the appellant seems to assert that the reason given over the phone, of his being unwell, was a pretext adopted so that Ms. Pang would not be alarmed). This raises the question, why would the appellant go back to Kerrie’s Oasis with Ms. Pang, in their separate cars, unless he had the purpose of ensuring that she was safe at Kerrie’s Oasis? According to the appellant’s version, he went with her to the door, and this must have been at the very time when Rose was about to shoot or in the process of shooting Ms. Ozonal; and yet the appellant, on his account, allowed Ms. Pang to go into Kerrie’s Oasis by herself, where she was murdered minutes later. Subsequently, the appellant gave an account to the police according to which he had not been near Kerrie’s Oasis since shortly after 6pm, over one hour before he was in fact at Kerrie’s Oasis. Added to this, there was blood consistent with Ms. Pang’s blood on his rifle case, and a blood-like substance on the appellant’s clothes, with DNA consistent with Ms. Pang’s DNA obtained from his clothes.
Even without Waters’ evidence, all those circumstances amounted to an extremely strong circumstantial case that the appellant went into Kerrie’s Oasis with Ms. Pang, and in so far as the jury’s verdict involved satisfaction beyond reasonable doubt that the appellant went inside, was present during the murder of Ms. Pang, and left with Rose and Waters after the murder, the jury’s finding to that effect could not be unreasonable.
So much follows without significant reliance on Waters’ evidence. Water’s evidence is more significant in relation to what actually happened inside Kerrie’s Oasis. Without his evidence, it might be conceivable from the circumstantial evidence that the appellant, after going inside Kerrie’s Oasis, was intimidated by Rose and Waters so that he did not prevent the killing, and later lied because he was afraid of reprisals if he identified Rose and Waters as the killers. However, no hypothesis of that kind was ever suggested by the appellant either in his statements to the police or otherwise.
The trial judge gave the following direction in relation to the evidence of Waters:
There is a direction which I now give you concerning the evidence of Ronald Waters. He is a witness who was criminally concerned in the events giving rise to these proceedings. You heard him give evidence that he was dealt with leniently by the court because of the assistance he promised to give with respect to the proceedings against Lindsey Rose and against the accused in these proceedings. He also conceded that if he did not give evidence in accordance with the statements which he made, that he was liable to be brought before the court and re-sentenced.
The need to give such a direction arises because the courts have, over the years, accumulated a great deal of experience concerning the reliability of evidence given by witnesses criminally concerned in the events giving rise to the proceedings and that experience would not readily be known to general members of the public, such as yourselves. That experience has shown that the evidence given by such witnesses is often unreliable. I do not intend to suggest that their evidence is always unreliable. My purpose in giving you this direction is only to warn that the evidence of an accomplice may be unreliable and for that reason alone you must approach that evidence with considerable caution in the way in which I will outline shortly.
There are, no doubt, many reasons why the evidence of an accomplice may be unreliable. It is only natural, you may think, that an accomplice may want to shift the blame from himself onto others and to justify his own conduct. In the process, the accomplice may construct untruthful stories which tend to play down his own part in the crime and to play up the part of others in that crime. Experience has shown that once having been given that version to the police, the accomplice may feel that he is locked into that version and that he is bound to relate the same version when giving his evidence.
However, if you bear in mind the warning I have given you, and approach the evidence of Ronald Waters with considerable caution, you may convict the accused in reliance upon his evidence if you are satisfied beyond reasonable doubt that his evidence is true.
This forcefully and appropriately brought home to the jury the caution with which it should approach Waters’ evidence. In my opinion, taking into account the whole of the circumstantial case, the evidence of Waters (treated appropriately with the caution advised by the trial judge), and the absence of any hypothesis of the kind which I have mentioned being suggested by the appellant, it cannot be said that the jury’s verdict was unreasonable. On the contrary, in my opinion it was reasonable and justified on the evidence.
APPEAL ON SENTENCE
Submissions
Mr. Boulten for the applicant referred to s.61(1) of the Crimes (Sentencing Procedure) Act 1991, and submitted that the reference in that provision to the “level of culpability in the commission of the offence” directs attention to the circumstances surrounding the offence, including subjective circumstances that may have contributed to its commission: R. v. Harris (2000) 50 NSWLR 409 at 419. It leaves to one side matters such as remorse, plea of guilty, and prospects of rehabilitation. Because the life sentence provided by s.61 of that Act does not contemplate any prospect of relief in the future, no matter how distant, it should be reserved for crimes of the utmost heinousness: Chung [1999] NSWCCA 330, Ibbs v. R. (1987) 163 CLR 447 at 451-2, Twala NSWCCA 4/11/94, Fernando (1997) 95 A Crim R 553 at pars.344-4, Harris at 423.
Mr. Boulten submitted that a deliberate killing for payment is prima facie in the worst category: King (1998) 99 A Crim R 288 at 292, R. V. Baker NSWCCA 20/9/95. But the facts may mitigate the objective seriousness of the crime, and may eliminate the potential for the imposition of penal servitude for life, at least for the person who pays: King at 292.
Mr. Boulten referred to a number of cases of re-determination of life sentences under s.13A of the Crimes (Sentencing Procedure) Act 1991, where persons involved in contract killings received determinate sentences, including King and Kalajzich (1997) 94 A Crim R 41.
Mr. Boulten submitted that the sentencing judge was in error in two respects: first, in taking into account as an aggravating feature that the victim’s death would deprive her five children of the care and comfort of a mother: see R. v. Previtera (1997) 94 A Crim R 76; and second, in rejecting the submission that the volatility of the domestic relationship in this case lessened the degree of criminality.
As regards the former, Mr. Boulten submitted that the fact that a victim has dependants could be relevant to the level of culpability only if the offender knew of this; and if that affected the level of culpability, it would be capricious in its application, because it would mean that a person is less culpable when killing strangers about whom the person knew nothing than when killing a person of whom the offender had knowledge.
As regards the second alleged error, Mr. Boulten submitted that it was erroneous to regard the circumstances of the killing in this case as making the volatility of the domestic relationship irrelevant: the volatility of that relationship can be regarded as having adversely affected the applicant’s decision-making capacity, and this was not excluded by the fact that, on the finding of the jury, the applicant contracted with another person for the killing of the victim.
The sentence was particularly harsh in circumstances where the applicant had no criminal record.
Decision
I accept that Previtera is authority for the proposition that the effect of a death upon the victim’s family, of itself, is not relevant to the culpability of the offender. However, that is not to say that the degree of harm which the offender knows will be caused by the offence is likewise not relevant: on the contrary, in my opinion the degree of harm which the offender knows will be caused by the offence is highly relevant to the culpability of the offender. In this case, quite plainly the applicant knew that the death of Ms. Pang would deprive five children of their mother, and prima facie that is serious harm, in addition to the death of Ms. Pang, which the applicant knew would be caused by his offence. This is not to say that the crime is more serious because Ms. Pang was in some way more worthy than other possible victims, merely to recognise the harm caused to children by the loss of their mother; and to recognise that where the offender knows that this harm will be caused, that can be relevant to the offender’s culpability. In my opinion, the sentencing judge made no error in this respect.
Turning to the other alleged error, the sentencing judge did not say that the volatility of a domestic relationship between an offender and a victim can never be relevant in the case of a contract killing. I accept that there could be cases in which one could say that the decision-making capacity of an offender was so adversely affected by the offender’s emotional relationship with the victim that this mitigated to some extent the culpability even of a contract killing; but in my opinion, there is no error in the view of the sentencing judge that this was not such a case.
As submitted by Mr. Berman SC for the Crown, the sentencing judge correctly noted a number of circumstances which together placed this killing into the worst category of cases: it was a contract killing, the deceased was blameless, the offence was planned, the applicant delivered the victim to her death, and the applicant provided encouragement to Rose to kill her. In those circumstances, I am not satisfied that there was any error in the sentencing judge finding that this was a case where the culpability of the appellant was so extreme as to justify the imposition of a life sentence under s.61. Particularly this is so in circumstances where there were two killings, albeit that the appellant was not shown to have intended the death of Ms. Ozonal, but was found guilty of her murder on the basis of the felony murder principle.
The sentencing judge also took into account the lack of contrition, that being relevant to sentence although not being relevant to determination of whether the matter fell within s.61.
In all the circumstances, I am not satisfied that error is shown.
CONCLUSION
The orders that I propose are:
1.Appeal against conviction dismissed.
2.Leave to appeal against sentence granted, and appeal against sentence dismissed.
BARR J: I agree with Hodgson JA.
GREG JAMES J: I agree with Hodgson JA.

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LAST UPDATED: 09/11/2001

[2001] NSWCCA 448

9 November 2001