The Queen v Deacon

Case [2019] NTCCA 22

CITATION:   The Queen v Deacon [2019] NTCCA 22

PARTIES:  THE QUEEN

v

DEACON, Danny Jack

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 9 of 2016 (21459053)

DELIVERED:  11 October 2019

HEARING DATES:  7 February 2017

JUDGMENT OF:  Grant CJ, Southwood J and Riley AJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy

Whether non-parole period of 21 years and six months manifestly inadequate having regard to objective and subjective factors affecting the relative seriousness of the offence – high degree of planning and organisation before commission of offence – motive to prevent victim taking son interstate –elaborate concealment of the crime – no remorse – nature of offending required primacy to be given to purposes of general deterrence, punishment and denunciation – non-parole period fixed not so disproportionate to seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring criminal activity – appeal dismissed.

Criminal Code 1983 (NT) ss 157
Sentencing Act 1995 (NT) ss 5, 53A

Bahar v The Queen (2011) 45 WAR 100, Karim v The Queen (2013) 83 NSWLR 268, distinguished.

Albert v The Queen [2009] NTCCA 1, Daniels v The Queen (2007) 20 NTLR 147, Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147, Director of Public Prosecutions (Vic) v Brown [2009] VSCA 314, DPP v Terrick; DPP v Marks; DPP v Stewart (2009) 24 VR 457, Emitja v The Queen [2016] NTCCA 4, Felicite v R [2011] VSCA 274, Forrest v The Queen (2017) 267 A Crim R 494, Inge v R (1999) 199 CLR 295, Johnson v The Queen [2012] NTCCA 14, Leach v The Queen (2005) 16 NTLR 117, Muldrock v The Queen (2011) 244 CLR 12, Noakes v The Queen [2015] NTCCA 7, R v Badanjak [2004] NSWCCA 395, R v Bednikov (1997) 193 LSJS 254, R v Heiss & Kamm [2009] NTSC 26, R v Karabi [2012] QCA 47, R v King (1988) 48 SASR 555, R v Latif [2012] QCA 278, R v Leach (2004) 14 NTLR 44, R v Nitu [2012] QCA 224, R v von Einem (1985) 38 SASR 207, R v Way (2004) 60 NSWLR 168, The Queen v Crabbe (2004) 150 A Crim R 523, The Queen v Mossman [2017] NTCCA 6, The Queen v Pot, Wetangky and Lande (Unreported, Northern Territory Supreme Court, 18 January 2011), The Queen v Shrestha (1991) 173 CLR 48, Truong v The Queen (2015) 35 NTLR 186, Wong v The Queen (2001) 207 CLR 584, referred to.

REPRESENTATION:

Counsel:

Appellant:WJ Karczewski QC, Director of Public Prosecutions, with M Chalmers

RespondentJCA Tippett QC

Solicitors:

Appellant:Office of the Director of Public Prosecutions

RespondentMaleys

Judgment category classification:              B

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AGLC
The Queen v Deacon [2019] NTCCA 22
Case
[2019] NTCCA 22
Decision Date

CaseChat Overview and Summary

The appeal concerned the adequacy of a non-parole period fixed for the respondent, who had been convicted of murder. The Crown appealed against the sentence imposed by the sentencing judge, arguing that the non-parole period of 21 years and six months was manifestly inadequate given the objective and subjective factors of the offence. The appeal was heard by Grant CJ, Southwood J, and Riley AJ.

The central legal issue before the court was whether the non-parole period of 21 years and six months was so disproportionate to the seriousness of the murder offence as to shock the public conscience and undermine public confidence in the courts' ability to deter criminal activity. This required the court to consider the proper interpretation and application of section 53A of the Sentencing Act 1995 (NT), which governs non-parole periods for murder, and to assess whether the sentencing judge had given appropriate weight to the purposes of general deterrence, punishment, and denunciation.

The court dismissed the Crown's appeal. It reasoned that the standard non-parole period of 20 years represents the middle of the range of objective seriousness for murder offences, not the least serious category as contended by the Crown. The court found that the sentencing judge had correctly identified and applied the relevant factors under section 53A(4) of the Sentencing Act, including the respondent's motive to prevent the victim from having a role in their son's upbringing, the elaborate planning and concealment of the crime, the obstruction of the police investigation, and the absence of remorse. These factors warranted a non-parole period longer than the standard 20 years. The court concluded that the non-parole period of 21 years and six months was not so disproportionate as to be considered manifestly inadequate.

Orders

Orders of the court

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Background

Background to the litigation

The appeal is dismissed for the reasons which follow.Background On 24 September 2015, the respondent pleaded not guilty to the murder of his de facto partner. The trial ran between 10 August and 9 September 2016. During the course of the trial the respondent gave evidence and admitted killing the deceased but asserted he had done so under provocation.[1] On 9 September 2016 he was found guilty of murder by majority verdict. Upon conviction the respondent became liable to mandatory imprisonment for life[2] with a standard non-parole period of 20 years unless the sentencing judge fixed a longer non-parole period. Non-parole periods for the crime of murder are governed by s 53A of the Sentencing Act 1995 (NT), which provides relevantly:53A Non-parole periods for offence of murder(1) Subject to this section, where a court (the sentencing court) sentences an offender to be imprisoned for life for the offence of murder, the court must fix under section 53(1):(a)a standard non-parole period of 20 years; or(b)if any of the circumstances in subsection (3) apply – a non‑parole period of 25 years.(2) The standard non-parole period of 20 years referred to in subsection (1)(a) represents the non-parole period for an offence in the middle of the range of objective seriousness for offences to which the standard non-parole period applies.(3) …(4) The sentencing court may fix a non-parole period that is longer than a non-parole period referred to in subsection (1)(a) or (b) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted.(5) …(6) The sentencing court may fix a non-parole period that is shorter than the standard non-parole period of 20 years referred to in subsection (1)(a) if satisfied there are exceptional circumstances that justify fixing a shorter non-parole period.(7) For there to be exceptional circumstances sufficient to justify fixing a shorter non-parole period under subsection (6), the sentencing court must be satisfied of the following matters and must not have regard to any other matters:(a)the offender is:(i)otherwise a person of good character; and(ii)unlikely to reoffend;(b) the victim’s conduct, or conduct and condition, substantially mitigate the conduct of the offender.(8) …(9) The sentencing court must give reasons for fixing, or refusing to fix, a non-parole period and must identify in those reasons each of the factors it took into account in making that decision.(10) …(11) …(12) … Under s 53A(4) of the Sentencing Act the sentencing judge determined that the longer non-parole period of 21 years and six months was warranted because of the following factors.[3](a)The respondent killed the deceased specifically to ensure that she would have no role in their son’s upbringing; and in so doing intentionally deprived the child of his mother’s love, care and guidance.(b)The respondent engaged in detailed and calculated planning prior to the killing, and a complex cover-up after the event.(c)The respondent positively obstructed and misled police investigating the disappearance of the deceased, and in doing so prolonged the stress and anxiety suffered by her family.(d)The respondent demonstrated no remorse for killing the deceased, and had sought to attribute responsibility for his actions to the deceased.The operation of s 53A of the Sentencing Act

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In addition to those qualifications, s 53A(2) of the Sentencing Act provides that the standard non-parole period “represents the non-parole period for an offence in the middle of the range of objective seriousness for offences to which the standard non-parole period applies”.[8]The Crown’s contention about the operation of s 53A The Crown contends that the standard non-parole period of 20 years represents the “floor” from which an assessment about the non-parole period is to be made, and is to be reserved for cases falling within the “least serious category” of murders. This is, as far as we are aware, the first time that the Crown has advanced this proposition since the commencement of the Sentencing (Crime of Murder) and Parole Reform Act 2003 on 11 February 2004. The contention is based largely on the decisions of the Western Australian Court of Appeal in Bahar v The Queen (Bahar)[9] and the New South Wales Court of Criminal Appeal in Karim v The Queen (Karim)[10]. Both cases involved the sentencing of an offender for the Federal offence of bringing into Australia, by seagoing vessel, persons who were not authorised to enter for which a statutory minimum term of imprisonment had been prescribed by s 233C of the Migration Act 1958 (Cth), which relevantly provided:(1) This section applies if a person is convicted of an offence under section 232A ... unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.(2) The court must impose a sentence of imprisonment of at least:(a)8 years, if the conviction is for a repeat offence; or(b)5 years, in any other case.(3) The court must also set a non-parole period of at least:(a) 5 years, if the conviction is for a repeat offence; or(b) 3 years, in any other case. The maximum penalty for the offence was fixed at imprisonment for 20 years by s 232A(1) of the Migration Act. The sentencing judge in Bahar imposed the minimum term of imprisonment of five years with a non-parole period of three years. In doing so, the sentencing judge rejected the Crown’s submission that the mandatory minimum penalty was reserved for offenders whose conduct was at the lowest level of the range of objective seriousness and who were able to establish mitigating factors such as diminished responsibility, significant cooperation, an early plea, youth or other personal factors. The Crown appealed on the ground of manifest inadequacy. In dismissing that appeal, the Court of Appeal made the following observations:[11]The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the 'just and appropriate' sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a 'just and appropriate' sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise 'category' of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the 'bottom line') is not dictated by the presence or absence of one or more mitigating factors.