R v Sales - [2020] NSWSC 1183

Supreme Court

New South Wales

Medium Neutral Citation: R v Sales [2020] NSWSC 1183
Hearing dates: 24 July 2020
Date of orders: 02 September 2020
Decision date: 02 September 2020
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
See [95]

Catchwords:
SENTENCING – Cumulative and Concurrent Sentences – where the Offender is already serving a lengthy sentence for a number of convictions – pleaded guilty to solicit to murder and murder involving two separate victims – assessment of the totality of the criminality involved over all the offending – assessment of the degree of concurrency these sentences should have with existing sentences

Legislation Cited:
Crimes Act 1900
Crime (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Green v R [2018] NSWCCA 146
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59;
Muldrock v The Queen [2011] HCA39; (2011) 244 CLR 120

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: The Crown
Graham Thomas Sales (Offender)
Representation:
Counsel:
B Hatfield (Crown)
T.D. Anderson (Offender)
Solicitors:
Crown Solicitors Office
Director of Public Prosecutions

File Number(s): 2020/92022
Publication restriction: Not Applicable

Judgment

Between 23 October 1995 and 28 October 1995, almost 25 years ago, Graham Sales (“the Offender”) murdered Ronald Penn (“the deceased”) in an area just north of North Entrance, NSW.
He did so by tricking the deceased into accompanying him to that area; he tricked him into digging his own grave; he then struck him with a baseball bat and choked him to death.
The deceased’s body, although buried in that grave, has never been found. The Offender confessed to this murder on 14 March 2018.
Between about 23 October 1995 and 22 November 1995, immediately after the offence to which I have just referred, the Offender was charged with breaching an Interim Apprehended Violence Order (“Interim AVO”) with respect to a female victim, to whom I will refer as “JF”. That matter was listed for hearing on 21 November 1995 at Gosford Local Court.
The Offender told his brother, Ross Sales, to kill JF, otherwise he, the Offender, would kill him. The Offender’s brother attempted to do so by firing a shortened gun at JF in the foyer of the Wyong Court House. JF was not killed, but she was seriously injured. The Offender accepts that he solicited his brother to murder JF.
On 1 May 2020, the Crown commenced the present proceedings against the Offender by way of ex officio Indictment. After an initial adjournment to obtain legal advice, the Offender pleaded guilty to both counts upon his arraignment in this Court on 15 May 2020.
It is now time for the Offender to be sentenced for his crimes.
At the relevant time, the Crimes Act 1900 provided for a maximum term of life imprisonment for the offence of murder,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sales

Details

AGLC: R v Sales [2020] NSWSC 1183
Case: [2020] NSWSC 1183
Decision Date: 02 September 2020

CaseChat Overview and Summary

In the case of R v Sales, the appellant was convicted of the solicitation to murder one individual and the murder of another. The appellant had already been serving a lengthy sentence for multiple previous convictions. The legal issues before the court involved the appropriate sentencing approach for the new offences, considering the cumulative effect of the appellant's criminal history and the degree of concurrency that should be applied to the new sentences in relation to the existing ones.

The court examined the totality of the criminality involved across all the offending episodes, assessing the seriousness of the new offences in the context of the appellant's extensive criminal history. It was essential to balance the need for punishment and deterrence with the avoidance of excessive cumulative sentences that could unduly extend the appellant's period of incarceration. The court needed to determine the appropriate level of concurrency to ensure that the new sentences reflected the gravity of the new offences while also considering the pre-existing sentence.

The court concluded that a significant degree of concurrency was appropriate in this case. The new sentences for the solicitation to murder and the murder were to run concurrently with the existing sentence. This approach recognised the appellant's extensive criminal record and the need to avoid disproportionately extending his period of incarceration. The court emphasised the importance of proportionality and consistency in sentencing, ensuring that the new sentences were commensurate with the gravity of the new offences while also taking into account the totality of the appellant's criminal conduct.

The final orders of the court included the imposition of concurrent sentences for the new offences, which would run with the existing sentence. This decision reflected the court's careful consideration of the appellant's criminal history, the seriousness of the new offences, and the need for a balanced and proportionate sentencing outcome.

Orders