Murder

[30-000] Introduction

Murder is defined in s 18(1)(a) Crimes Act 1900 (NSW) in the following terms:

Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

There are therefore four identifiable bases of liability of murder, involving:

  • an intent to kill

  • an intent to inflict grievous bodily harm

  • reckless indifference to human life, or

  • the commission of a crime punishable by life imprisonment or imprisonment for 25 years.

Murder has been described as the most serious offence in the criminal calendar: R v Penisini [2003] NSWSC 892 at [82]; R v Dalley (2002) 132 A Crim R 169 at [95]. It carries a maximum penalty of life imprisonment: s 19A Crimes Act 1900.

[30-010] Relative seriousness of the categories of murder

Intent to kill — seriousness compared to inflict grievous bodily harm

The state of mind in which murder is committed is directly relevant to determining the objective seriousness of the crime: Charbaji v R [2019] NSWCCA 28 at [180]. However, while intent to kill generally tends to greater objective seriousness than an intention to inflict grievous bodily harm, the question of intent is not the only relevant consideration: Charbaji v R at [180]; Apps v R [2006] NSWCCA 290 at [49]; Versluys v R [2008] NSWCCA 76 at [32]. There may be circumstances where an intention to inflict grievous bodily harm reflects similar criminality to cases involving an intention to kill: R v Nelson (unrep, 25/6/96, NSWCCA); R v Wilson (2005) 153 A Crim R 257 at [22]; R v Hillsley (2006) 164 A Crim R 252 at [16]–[17].

Intent to inflict grievous bodily harm — seriousness compared to constructive murder

In R v Wilson (2005) 153 A Crim R 257, where the sentencing judge found that the basis for murder was an intention to inflict grievous bodily harm, as opposed to constructive murder, it was said at [22] that “[a]n offence of murder on some other basis than intent to kill is not necessarily of less culpability for that reason, and attention must be directed to the actual circumstances.”

Reckless indifference to human life — seriousness compared to specific intention

In R v Holton [2004] NSWCCA 214, a case in which the appellant’s vehicle collided with a police officer while the officer was in the process of deploying road spikes, the prosecution relied on reckless indifference to human life as the basis for liability for murder. The Crown appealed against the sentence of 16 years imprisonment with a non-parole period of 12 years. Grove J observed at [59] (cf Hulme J who would have increased the sentence at [120]):

There is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder resulting from specific intention: R v Ainsworth 1994 76 A Crim R 127, but so to say inheres recognition that murder by reckless indifference is not necessarily as culpable as other forms. Each case must be considered on its own facts.

The need to consider each case on its own facts was recognised by the Victorian Court of Criminal appeal in R v Aiton (1993) 68 A Crim R 578 at 597–598, referred to with approval by Gleeson CJ in R v Ainsworth (1994) 76 A Crim R 127 at 139.

Constructive murder — degrees of seriousness

The common law offence of felony murder has been replaced by the fourth category of murder as set out in s 18(1)(a) Crimes Act 1900. The term “constructive murder” should generally be used in preference to “felony murder” to avoid confusion with the common law: R v Spathis; R v Patsalis [2001] NSWCCA 476 at [209].

In R v Jacobs (2004) 151 A Crim R 452 at [332] Wood CJ at CL said:

Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender’s conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93.

Aslett v R [2006] NSWCCA 360 was a case of constructive murder, the foundational crime being one of robbery armed with a dangerous weapon. The court observed at [21] that “[a] murder committed in these circumstances may be as serious as a murder committed with intent to kill”, but on appeal reduced a life sentence to a non-parole period of 28 years with an additional term of six years.

In R v Mills (unrep, 3/4/95, NSWCCA), Cole JA said:

As the trial judge made clear, taking a loaded firearm and using it as a threat whilst in the course of committing a serious felony is a most serious matter. It is to be greatly discouraged by sentences of this Court. The fact that the murder was a felony murder is no ground for reducing either the minimum term or the total sentence.

Gleeson CJ agreed:

The major premise underlying the argument of counsel for the appellant was that cases of felony murder involved a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence than applies to intentional killing.

I would reject that premise. Indeed, it would be difficult to select a better case than the present for the purpose of demonstrating its falsity. This was a case where a young man with an appalling history of criminal offending used a loaded gun in an armed robbery. He came to close quarters with the surprised victim. As is highly likely to occur in such circumstances, the weapon discharged. For the sake of the appellant’s determination to get his hands on a few hundred dollars, an innocent person lost his life. This is a case of murder involving a very high degree of seriousness.

[30-020] Standard non-parole periods

There are three standard non-parole periods prescribed for murder:

  • 20 years for murder (general) committed on or after 1 February 2003

  • 25 years for the murder of a person falling within a category of occupation committed on or after 1 February 2003

  • 25 years for the murder of a child, whenever committed.

A table of standard non-parole period appeal cases is available for JIRS subscribers at <https://jirs.judcom.nsw.gov.au/benchbks/sentencing/snpp_appeals.html>.

Standard non-parole period — murder (general)

For offences of murder (other than those set out below) committed after 1 February 2003, there is a standard non-parole period of 20 years. The standard non-parole period does not apply to matters for which a life sentence is imposed: s 54D(1)(a) Crimes (Sentencing Procedure) Act 1999. A list of appeal cases and summaries involving murder, which were decided following Muldrock v The Queen (2011) 244 CLR 120 is accessible via “SNPP Appeals” on the JIRS website. For a general discussion on standard non-parole periods see Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

The standard non-parole period — victim occupation category

A standard non-parole period of 25 years is prescribed for murders committed after 1 February 2003 “where the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation”: item 1A, Table of standard non-parole periods, s 54D(2), Crimes (Sentencing Procedure) Act 1999.

Even before the introduction and application of the above standard non-parole period, it was recognised that an offender’s culpability may be aggravated by the fact that the victim was a police officer: R v Adam [1999] NSWSC 144 at [44]–[46]; R v Penisini [2004] NSWCCA 339 at [20]; R v Holton [2004] NSWCCA 214 at [100], [125]. In R v Rees (unrep, 22/9/95, NSWCCA), Gleeson CJ said that the deliberate killing of a police officer warrants “severe retribution.”

Standard non-parole period — child victims

A standard non-parole period of 25 years is prescribed for murder cases where the victim is a child under the age of 18 years; item 1B, Table of standard non-parole periods, s 54D(2), Crimes (Sentencing Procedure) Act 1999. Unlike other categories of murder with a standard non-parole period, the transitional provisions in the amending Act which inserted the item provided it applies “to the determination of a sentence whenever committed” (subject to the conviction being recorded or a plea being entered before 1 January 2008): Sch 2, Pt 17, cl 57, Crimes (Sentencing Procedure) Act 1999.

The murder of a child has always been considered a crime of extreme gravity, whether committed by a stranger or family member. The courts have recognised the enhanced culpability of an offender who is motivated to kill his child in order to punish the other parent. In R v Fraser [2005] NSWCCA 77, which involved the murder of the offender’s three children during an access visit, Grove J said at [41]–[42]:

there is one factor which is present in the circumstances for which the applicant must be sentenced, which was absent from all the cases cited, and that is that the applicant’s motive in killing the children was, at least in part, to punish his wife. To that end he took steps to plan the homicides and to fulfil a threat which he had made on multiple occasions prior to carrying it out.

I would uphold the Crown submission that, given that anger directed towards his wife played a significant role in determining to kill the children, and that the anger was focussed upon his beliefs as to her relationship and the institution of legal proceedings, there was a heightened need for denunciation and general deterrence. Some remarks of Lander J in R v Hull [1997] SASC 6087 are pertinent:

“This is a case where aspects of general deterrence are important. Many persons are involved in marital disputes and many of those disputes often become heated and some unfortunately become violent. Too often, sadly, children become pawns in those marital disputes. That is bad enough but those who do become involved in marital disputes must clearly understand that they cannot visit violence upon their children for any reason whatsoever, but in particular for the purpose of upsetting or punishing their spouse. Such action, it should be understood, will attract very severe punishment. The community ought to be able to expect that the courts will be quick to protect the defenceless, particularly children.”

[30-025] Provisional sentencing of children under 16

Part 4, Div 2A Crimes (Sentencing Procedure) Act 1999 provides for provisional sentencing of children convicted of murder.

Section 60B(1) enables a court to impose a provisional sentence where:

(a) 

the offender was less than 16 years of age at the time of the murder; and

(b) 

the offender is less than 18 years when the provisional sentence is imposed; and

(c) 

the sentence proposed is a term of imprisonment; and

(d) 

the court cannot satisfactorily assess the offender’s prospects of rehabilitation or likelihood of re-offending because the information available does not permit a satisfactory assessment of whether the offender has or is likely to develop a serious personality or psychiatric disorder or a serious cognitive impairment.

A court that imposes a provisional sentence on an offender is to review the case at least once every two years after the provisional sentence is imposed: s 60E. Following a progress review, the court may impose or decline to impose a final sentence: s 60G(1). However, a final sentence must be imposed before the expiry of the “initial custodial period” as defined by s 60H(2). The term of imprisonment imposed under the final sentence, as well as the non-parole period if any is set, must not exceed the term of imprisonment and the non-parole period imposed under the provisional sentence: s 60G(3)(a), (b). The final sentence is taken to have commenced on the day on which the provisional sentence commenced: s 60G(3)(c).

Provisional and final sentences are subject to appeal under s 2(3) Criminal Appeal Act 1912. The Court of Criminal Appeal may substitute a new provisional sentence or a final sentence: s 60I(1).

Provisional sentencing applies to any sentence imposed after 25 March 2013, including a sentence for an offence committed before that date: Sch 2, Pt 23, cl 64, Crimes (Sentencing Procedure) Act.

[30-030] Life sentences

If an offender is sentenced to life imprisonment under s 19A, a non-parole period cannot be imposed and the offender must serve the sentence for his or her natural life, subject to the exercise of the prerogative of mercy: R v Harris (2000) 50 NSWLR 409 at [122], [125].

Life sentences at common law

See generally the discussion with regard to worst cases at [10-005] Cases that attract the maximum.

Under the common law, the maximum penalty of life imprisonment is intended for cases that are so grave as to warrant the maximum prescribed penalty: The Queen v Kilic (2016) 259 CLR 256 at [18].

Life sentences under s 61, Crimes (Sentencing Procedure) Act 1999

Section 61(1) Crimes (Sentencing Procedure) Act 1999 provides:

A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

The burden is on the Crown to establish beyond reasonable doubt that a case falls within s 61(1): R v Merritt (2004) 59 NSWLR 557 at [35]. However, not all of the factors which would lead to a conclusion that s 61(1) is applicable must be established beyond reasonable doubt: Adanguidi v R (2006) 167 A Crim R 295 at [55]. It is the combined effect of the findings concerning the indicia in s 61(1) (that is, the interest in (i) retribution (ii) punishment (iii) community protection, and (iv) deterrence) that must be considered: R v Merritt, above, at [52], [54].

Section 61 is subject to s 21(1) of the same Act (see s 61(3)), which provides that, even though liable to a sentence of life imprisonment, an offender may receive a determinate sentence. It has been held that a two-stage process is therefore required in determining whether a life sentence is mandated: R v Valera [2002] NSWCCA 50 at [8]; R v Miles [2002] NSWCCA 276 at [204]:

The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty.

In R v Harris (2000) 50 NSWLR 409 at [87]–[88], [90] the court held that s 61(1) effectively restates the common law concerning the imposition of life sentences for murder. Similarly, in Adanguidi v R, above, at [23], it was noted that “two avenues for a life sentence continued to exist after the enactment of s 61 of the Act, one arising at common law and the other arising under s 61”.

It is not necessary for the sentencing judge to use the precise terms set out in s 61(1): R v Lo [2003] NSWCCA 313 at [27].

Life sentences may be imposed despite presence of subjective mitigating factors

The absence of criminal antecedents does not render an offender immune to the maximum penalty, either under s 61(1) (for example, Adanguidi v R (2006) 167 A Crim R 295 at [34]: Knight v R (2006) 164 A Crim R 126), or the common law (for example, R v Ngo [2001] NSWSC 1021).

A life sentence may also be imposed either at common law or under s 61(1) even if the offender pleads guilty: R v Baker (unrep, 20/9/95, NSWCCA); R v Garforth (unrep, 23/5/94, NSWCCA) (both sentenced prior to the introduction of the predecessor to s 61(1)); R v Coulter [2005] NSWSC 101 at [56]–[57]; Knight v R (2006) A Crim R 126 at [37]; R v Miles [2002] NSWCCA 276 at [213].

Section 61(1) does not apply to offenders under the age of 18 years (s 61(6)), although arguably the common law still applies to such offenders. Life sentences have been imposed on young adults in Gonzales v R [2007] NSWCCA 321 (20 years at the time of offence); and R v Valera [2002] NSWCCA 50 (19 years). These were cases to which s 61(1) applied. In R v Leonard (unrep, 7/12/98, NSWCCA), a case in which the common law applied, McInerney J said:

to sentence the applicant to imprisonment for the term of his natural life is a terrible punishment to impose on a young man aged twenty-four. However, as the Crown has pointed out, the legislature has seen fit to pass such legislation and it expects this Court to carry out the intention of the legislature should the situation call for such a sentence. We should not shirk from our responsibility in so doing, no matter how distasteful it may be.

Both at common law and in the application of s 61(1), life sentences have been imposed regardless of whether there is some prospect of rehabilitation. In R v Baker (unrep, 20/9/95, NSWCCA), Barr AJ rejected the proposition that a life sentence should never be imposed where there is some prospect of rehabilitation. Similarly, in R v Garforth (unrep, 23/5/94, NSWCCA), the court said:

We reject the applicant’s submission that it is only where there is no chance of rehabilitation that the maximum penalty of life imprisonment can be imposed. There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty.

These cases concerned sentences imposed prior to the introduction of the predecessor to s 61. Similar observations were made in Knight v R (2006) 164 A Crim R 126 at [23], a case to which s 61 applied.

Murder of police officers

The Crimes Amendment (Murder of Police Officers) Act 2011 amended the Crimes Act 1900 by inserting s 19B. Section 19B requires a court to impose a sentence of life imprisonment where a police officer is murdered in the course of executing his or her duty; or as a consequence of, or in retaliation for, actions undertaken by any police officer in the execution of their duty where the person knew or ought to have known that the person killed was a police officer. The person must have intended to kill the police officer, or have been involved in criminal activity that risked serious harm to police officers. Section 19B applies to offences committed after 23 June 2011: s 19B(7).

Section 19B was applied in R v Jacobs (No 9) [2013] NSWSC 1470.

Multiple murders

One of the factors that might justify the imposition of a life sentence is where the offender commits multiple murders: R v Baker (unrep, 20/9/95, NSWCCA) per Gleeson CJ.

It is permissible to take the fact that there are multiple murders into account in determining whether an offence should attract the maximum: see R v Harris (2000) 50 NSWLR 409 at [94]–[95]; R v Villa [2005] NSWCCA 4 at [93]; Adanguidi v R (2006) 167 A Crim R 295 at [32]. However, as McClellan CJ at CL said in Aslett v R [2006] NSWCCA 360 at [25]:

To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)).

The difficulty identified in Aslett v R does not arise in the context of multiple murders committed as part of a single episode of criminality. In such a case, the objective criminality of one offence is capable of informing the objective criminality of another, and the court may have regard to the whole of the conduct in determining the level of culpability involved in the commission of each offence: Adanguidi v R at [32].

[30-040] Aggravating factors and cases that attract the maximum

See generally the discussion with regard to worst cases at [10-005] Cases that attract the maximum; see also The Queen v Kilic (2016) 259 CLR 256.

Contract killings

In R v Baartman (unrep, 7/12/94, NSWSC), Abadee J said that the “[p]lanned and deliberate shooting of another human being for no better reason than economic gain is surely to be regarded by a civilised society as being a very serious crime.”

Similar comments were made by the Court of Criminal Appeal in R v Kalajzich (1989) 39 A Crim R 415; and R v Lo [2003] NSWCCA 313 at [16], where it was also held that the gravity of the offence was enhanced by the fact that the murder was motivated by a desire to prevent the victim from giving evidence in criminal proceedings.

In R v Crofts (unrep, 6/12/96, NSWSC) Grove J said, “A deliberate killing for payment would prima facie find its place in the worst category of case with a potential for imposition of the maximum penalty of penal servitude for life.” In R v Kalajzich (1997) 94 A Crim R 41, Hunt CJ at CL endorsed this statement, but added at 52:

The word “potential” is important, for not every case of a contract killing would attract the maximum penalty. There will sometimes be a distinction to be drawn between the person who pays and the person who kills. Facts mitigating the objective seriousness of the crime may well eliminate that potential, at least so far as the person who pays. [Citations omitted.]

For a contract killing to which the standard non-parole period provisions applied, see R v Willard [2005] NSWSC 402 at [28].

Circumstances surrounding the offence

The mutilation of the deceased’s body can be taken into account as an aggravating factor in assessing the seriousness of the offence: R v Knight (2006) 164 A Crim R 126 at [28]–[29]; R v Yeo [2003] NSWSC 315 at [36]; R v England (1999) 106 A Crim R 99 at [35], [37], [41].

In R v Garforth (unrep, 23/5/94, NSWCCA), the court held that the sentencing judge was entitled to take the abduction and sexual assault of the victim into account in determining whether the offence fell within the worst case category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256). In R v Hillsley (2006) 164 A Crim R 252 at [20]–[22], the court held that the sexual assault of the deceased’s child, which was part of the motive for the killing of the deceased, was rightly considered in assessing the objective gravity of the murder.

In Charbaji v R [2019] NSWCCA 28, the court found it was not an error to assess a murder, committed with an intent to kill, as being well above the mid-range and approaching the worst case, in circumstances where the offence was brutal, cruel and callous and involved torturing the deceased over a prolonged period of time: at [182]–[184].

Substantial harm

In R v Previtera (1997) 94 A Crim R 76, Hunt CJ at CL said that in a crime involving death, a victim impact statement by a family member which deals with the effect of the death upon the family can never be relevant to the sentence to be imposed.

This is to be distinguished from a situation in which the offender knowingly deprives a child or children of their parent. In R v Lewis [2001] NSWCCA 448 at [67], Hodgson JA said:

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. That 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.

An aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 is where the “injury, emotional harm, loss or damage caused by the offence was substantial”. In Aslett v R [2006] NSWCCA 360 at [37] it was said that s 21A(2)(g) is not limited to the harm suffered by the primary victim. However, the court has in other cases declined to directly deal with the question of whether the impact of the victim’s death on family members can now be taken into account in sentencing: R v Tzanis [2005] NSWCCA 274 at [16]; R v FD (2006) 160 A Crim R 392 at [107].

See further discussion in Victims and victim impact statements at [12-830].

Future dangerousness

Dangerousness alone is not sufficient to justify imposing the maximum penalty for murder: see R v Hillsley (2006) 164 A Crim R 252 at [24]. It is impermissible to increase an otherwise appropriate sentence merely to achieve preventative detention: Veen v The Queen (No 2) (1988) 164 CLR 465 at 473, 474. An offender’s future dangerousness is, however, a highly relevant factor. In R v Harrison (1997) 93 A Crim R 314, it was held that “a sentencing judge is not required to be satisfied beyond reasonable doubt that a prisoner will in fact re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown.” This was confirmed in R v Robinson [2002] NSWCCA 359 at [48]–[50]; and R v SLD (2003) 58 NSWLR 589 at [40]. In addition to any other evidence before the court, the sentencing judge is entitled to take the circumstances of the offence into account in determining the question of future dangerousness: R v Garforth (unrep, 23/5/95, NSWCCA). In that case it was also said:

It is now well settled that the protection of society — and hence the potential dangerousness of the offender — is a relevant matter on sentence (Veen v The Queen (No 2) (1988) 164 CLR 465). This factor cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. But it can be used to offset a potentially mitigating feature of the case, such as the offender’s mental condition, which might otherwise have led to a reduction of penalty … in the case of homicides involving a high degree of culpability, the fact that the offender will be likely to remain a danger to the community for the rest of his or her life might justify the imposition of life imprisonment.

The High Court discussed the issue of predicting dangerousness in Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [12], [124]–[125].

Other factors

Some other factors which have been identified in murder cases as aggravating the offence or indicating that it attracts the maximum include:

  • murders motivated by financial greed: Adanguidi v R (2006) 167 A Crim R 295 at [34]; R v Smith [2000] NSWCCA 202 at [164] and [166]

  • where the motive for murder is to conceal another offence: R v Villa [2005] NSWCCA 4 at [87]; R v Lett (unrep, 27/3/95, NSWCCA); R v Baker [2019] NSWCCA 58 (a solicit to murder case)

  • the killing of a political figure for political ends: R v Ngo [2001] NSWSC 1021 at [23], [25]

  • where the murder arises from a planned extortion: R v Liew (unrep, 24/12/93, NSWCCA)

  • where the murder takes place within the sight of the deceased’s children: R v Miles [2002] NSWCCA 276 at [180] (now given legislative recognition in s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999)

  • where the offence involves prolonged suffering and torture of the deceased: Charbaji v R [2019] NSWCCA 28 at [182]–[184].

In R v Hore; R v Fyffe [2005] NSWCCA 3 the applicants sought leave to appeal against life sentences imposed for the murder of a fellow prison inmate. In his sentencing remarks with respect to each offender, Barr J said (R v Hore [2002] NSWSC 749 at [41]; R v Fyffe [2002] NSWSC 751 at [33]):

A serious feature of the murder is that it was carried out in prison. It was a minimum security prison and the offender abused the freedom that his classification in that environment afforded him. It is particularly important that courts impose sentences calculated to deter the commission of offences in prison.

On appeal it was held that the sentencing judge did not err in treating the fact that the murder occurred in a minimum security prison as a factor warranting condign punishment: R v Hore; R v Fyffe, above, at [351].

[30-045] Relevance of motive

The absence of a motive for a murder may require consideration as part of the factual circumstances of the offence. In Louizos v R (2009) 194 A Crim R 223, a solicit to murder case, a finding that the absence of motive warranted a lesser non-parole period was held to be erroneous: Louizos v R at [102]. Absent proof of a motive, there will be no causal explanation of the crime that might be taken into account to calculate whether repetition of the circumstances leading to it is likely or whether the applicant’s prospects for rehabilitation are greater or less: Cramp v R [2016] NSWCCA 305 at [28]–[31].

In DL v R [2018] NSWCCA 302, a 16-year-old boy murdered a 15-year-old girl with no apparent motive. Critical features on re-sentence in that case were the combination of the frenzied nature of the attack and the absence of any satisfactory explanation, motive or the trigger for such an attack: DL v R at [61].

[30-047] Murders committed in context of domestic violence

Significant weight should be given to general deterrence, denunciation and community protection when sentencing an offender who takes their partner’s or former partner’s life. A just sentence must accord due recognition to the dignity of the domestic violence victim: Quinn v R [2018] NSWCCA 297 at [243]; Munda v Western Australia (2013) 249 CLR 600 at [54]–[55]. The High Court in The Queen v Kilic (2016) 259 CLR 256 at [21] recognised a societal shift in attitudes to domestic violence which may require current sentencing practices to depart from past practices: Quinn v R at [245]. Domestic violence offences not infrequently conform to a pattern where a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship: Quinn v R at [244]; Patsan v R [2018] NSWCCA 129 at [39]. This is an aspect of the protection which should be accorded by the law to persons in domestic relationships: Quinn v R at [244]. Rigorous and demanding consequences for the perpetrators of domestic violence are necessary to protect partners, family members and the wider community: Cherry v R [2017] NSWCCA 150 at [78].

See also Domestic violence offences at [63-500]ff.

[30-048] Delay between murder offence and sentence

Where there has been a long delay between the commission of the murder and the time of sentencing, a court should sentence by reference to the sentencing patterns that existed when the offence was committed: R v MJR (2002) 54 NSWLR 368 at [107]; R v Moon (2000) 117 A Crim R 497 at [69]; see further Delay at [10-530] in Sentencing practice after long delay.

[30-050] Rejection of defences to murder

The rejection of either a partial defence (for example, provocation or substantial impairment) or complete defence (such as mental illness) to murder does not mean that the basis for such defence is not relevant to the determination of the appropriate sentence: R v Bell (1985) 2 NSWLR 466 at 485; R v Fraser [2005] NSWCCA 77 at [25]. In R v Verney (unrep, 23/3/93, NSWCCA), Hunt CJ at CL said:

a jury’s rejection of a defence of diminished responsibility does not mean that the judge is not entitled to find for himself from the evidence some impairment of the prisoner’s responsibility or culpability for his actions short of that which the defence pursuant to s 23A of the Crimes Act 1900 requires.

In R v Cheatham [2002] NSWCCA 360 at [134] it was held that, although the appellant failed to satisfy the jury that his abnormality of mind substantially impaired his mental responsibility, allowance should be made for that abnormality.

In R v Heffernan [2005] NSWSC 739 at [50], Hoeben J took into account “circumstances which did amount to provocation, albeit that they did not reach the level required to reduce murder to manslaughter”. His Honour also took into account at [51]–[52] the offender’s level of intoxication and “some element of self-defence”, although these factors similarly were not established to the degree necessary to reduce the offence to manslaughter. The combination of these three factors operated “to push the objective criminality of this murder towards the bottom of the range for that offence”: R v Heffernan at [54].

Every case must be judged according to its own circumstances and the question for the court will be whether on the evidence the factor being put forward as a mitigating factor has a relevant connection to the offence: R v Bell, above, at 485.

A diminution of culpability may also be taken into account on sentencing for murder in cases where the offender has, for forensic reasons, declined to present evidence of substantial impairment at trial: R v Turner (unrep, 4/3/94, NSWCCA).

[30-070] Joint criminal enterprise

An offender’s liability for murder may arise from a joint criminal enterprise or an extended joint criminal enterprise. Generally, the perpetrator responsible for the actual killing will be treated as having demonstrated greater objective criminality than an offender who is not physically responsible for the death, see for example R v Taufahema [2004] NSWSC 833 at [49].

Participants in a joint criminal enterprise are equally responsible for all the acts in the course of carrying out the enterprise, regardless of who commits them, but a particular participant’s level of moral culpability is assessed by reference to that participant’s particular conduct: KR v R [2012] NSWCCA 32 at [19]; R v Wright [2009] NSWCCA 3 at [28]–[29]; R v JW (2010) 77 NSWLR 7 at [161]. Such an approach is consonant with the distinction between an offender’s responsibility for criminal conduct and his/her culpability. See further A Dyer and H Donnelly “Sentencing in complicity cases — Part 1: Joint criminal enterprise”, Sentencing Trends & Issues, No 38, 2009.

Life sentences in cases of murder based on extended joint criminal enterprise would, however, appear to be rare, see for example Brown v R [2006] NSWCCA 395, where a head sentence of 20 years with a non-parole period of 15 years was imposed.

[30-080] Accessories

Accessories before the fact to murder

An accessory before the fact to murder is liable to the same maximum penalty as for murder: s 346 Crimes Act 1900. It has been held that the standard non-parole period provisions for murder do not apply to accessories before the fact: Aoun v R [2007] NSWCCA 292 at [27]. As of 15 November 2007, s 346 was amended to provide that an accessory before the fact to murder is liable to the “same punishment to which the person would have been liable had the person been the principal offender” (previously expressed as the “same punishment as the principal offender”): Criminal Legislation Amendment Act 2007, Sch 3[5].

An accessory is not necessarily less culpable than a principal, and in some cases may be more so, especially where the accessory instigates and plans the murder: R v Norman; R v Oliveri [2007] NSWSC 142 at [30].

Accessories after the fact to murder

An accessory after the fact to murder is liable to a maximum penalty of 25 years’ imprisonment: s 349(1) Crimes Act 1900. There is a wide variation in the possible degrees of culpability involved in the offence: R v Farroukh and Farroukh (unrep, NSWCCA, 29/3/96). General deterrence and retribution are important considerations in sentencing: R v Ward [2004] NSWSC 420 at [51].

In R v Quach [2002] NSWSC 1205 at [11], Simpson J held that “assistance in the disposal of a body after a murder [as opposed to, for example, assisting the principal to clean him/herself up] takes a crime of this kind into the upper echelons of the offence against s 349”.

Accessories after the fact are viewed more seriously where the offender has a personal interest in the criminal enterprise, or became involved through their association with criminal elements: R v Farroukh and Farroukh. Such cases are to be contrasted with situations thrust upon accessories without any prior warning and not of their own making. Where an accessory provides assistance after being thrust into a situation without warning, but the assistance continues for a period of time, it should no longer be regarded as a “spur-of-the-moment” reaction: R v Farroukh and Farroukh; R v Walsh; R v Sharp [2004] NSWSC 111 at [48]; see also R v Ward [2004] NSWSC 420 at [48]; and R v Quach, above, at [11].

On the other hand, accessories who have no personal relationship with the principal may be viewed more seriously than accessories who provided assistance out of a sense of emotional attachment or misguided loyalty (R v Dileski (2002) 132 A Crim R 345 at [17]), although that is not to say that an offence which is committed out of a misguided sense of loyalty will necessarily attract a lenient penalty, as “[s]uch offending commonly represents a choice to place the interests of the principal offender ahead of the victim and/or the public generally”: R v Ward [2004] NSWSC 420 at [49].

Only assistance which helps the principal offender to evade justice is embraced by the offence of accessory after the fact: R v Dileski, above, at [8]. In R v Dileski, the applicant remained at the scene of the crime to ensure the murder went undetected. He also lied about the victim’s whereabouts when a friend came looking for him. However, it was an error to sentence the applicant for additional conduct which helped the principal obtain money from the victim’s bank account. Subsequent conduct by an accessory beyond assistance to the principal, for example lying about his or her own involvement to police, may nevertheless be relevant to findings of remorse and contrition: R v Farroukh and Farroukh.

[30-090] Conspiracy/solicit to murder: s 26 Crimes Act 1900

The offence of conspiracy or solicit to murder carries a maximum penalty of 25 years’ imprisonment: s 26 Crimes Act 1900. In R v Potier [2004] NSWCCA 136 at [55], the maximum penalty was said to provide “a clear indication that the offence is one of the most serious in the criminal calendar”. The court went on to say at [55]–[56]:

On any view, the soliciting of a person to kill a third party is a fundamentally abhorrent and heinous crime. It is a crime for which the sentence must reflect a significant element of personal and general deterrence.

Deterrence has a particular relevance by reason of the cold blooded motivation that lies behind the act of an offender in engaging or attempting to engage a hit man to kill another for regard. It also has a particular relevance in that part of the motivation, in contracting the job out to a professional, is to reduce the chances of detection, not only because that person is assumed to have special skills, but also because the offender is able to place himself or herself one step removed from the killing.

In that case, the fact that the offender was motivated by a desire to frustrate Family Court proceedings was held to place his criminality “in the upper level of objective seriousness”: R v Potier at [81]. In R v Lo [2003] NSWCCA 313 at [42], the conspiracy to murder a witness in pending criminal proceedings was held to fall within the worst case category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256). Offences arising from a desire to interfere with criminal proceedings involve a high degree of culpability: R v Lewis (1998) 100 A Crim R 361 at 363.

In R v Baker [2019] NSWCCA 58, the respondent recruited his estranged wife to act as his agent by engaging an undercover operative (acting as a “hit man”) to murder his son and his son’s friend (both aged 14), who were witnesses at his pending trial for aggravated sexual assault (of his son’s friend) and firearm offences. The court found the offending should have been assessed as well above the middle of the range and approaching the high range not, as was found at first instance, just above the mid-range: R v Baker at [62]–[63]. Factors influencing that decision included the fact the respondent instigated the plan, gave the directions to his co-offender who passed them on and did not avail himself of any of the many opportunities to resile from his intention to have the witnesses (both children) killed.

In R v Qutami (2001) 127 A Crim R 369 the respondent had sought to have his niece killed after she left her husband to live with a man of different religion. Smart AJ said at [37] that it was irrelevant that the victim had assured the court she no longer feared the respondent. His Honour went on to say at [57]:

I wish to emphasise that this Court will ensure that those who solicit to murder are severely punished. It will not tolerate people taking the law into their own hands because others do not meet their standards or their code of morality or comply with their religious beliefs and practices.

An offender’s culpability may be reduced if there is a real possibility that the offence would not have been committed but for the assistance, encouragement or incitement offered by undercover police officers: R v Taouk (1992) 65 A Crim R 387 at 404. However, there is no mitigation where the effect of police involvement is to detect the offence and obtain evidence against an offender, rather than encourage a person who would otherwise not have committed the offence: R v Stockdale (2004) 142 A Crim R 448 at [28].

Because there are relatively few cases on offences under s 26, they cannot be relied upon as establishing a relevant range of sentences: R v Potier at [75].

Standard non-parole period

For offences under s 26 committed after 1 February 2003 there is a standard non-parole period of 10 years: item 2, Table of standard non-parole periods, s 54D(2), Crimes (Sentencing Procedure) Act 1999. Cases such as Bou-Antoun v R [2008] NSWCCA 1 and Benitez v R (2006) 160 A Crim R 166 have to be read in light of Muldrock v The Queen (2011) 244 CLR 120. See Standard non-parole period offences — Pt 4 Div 1A at [7-890]ff.

[30-100] Attempted murder

Introduction

Offences of attempted murder by various means are provided in ss 27, 28, 29 and 30 Crimes Act 1900.

Each form of attempted murder is liable to a maximum penalty of 25 years. The high maximum penalty reflects the obvious seriousness of the offence: R v Thew (unrep, 25/8/98, NSWCCA).

Where an offence under ss 27–30 is committed on or after 1 February 2003, a standard non-parole period of 10 years is prescribed: item 3, Table of standard non-parole periods, s 54D(2), Crimes (Sentencing Procedure) Act 1999. For a case dealing with an offence under s 27 (wound with intent to murder) to which the standard non-parole period provisions applied, see R v Zegura [2006] NSWCCA 230.

Objective factors

Relevant objective factors include the skill and determination of the attempt, the motive, whether it was premeditated, the likelihood of death, and the injuries inflicted: R v Nguyen (unrep, 13/6/91, NSWCCA); R v McCaffrey; R v Rowsell [1999] NSWCCA 363 at [20]; R v Hynds (unrep, 4/6/91, NSWCCA); R v Rae [2001] NSWCCA 545 at [13].

The objective seriousness of an attempted murder may fall little short of the culpability for the completed crime: R v Macadam-Kellie [2001] NSWCCA 170 at [42] (two-judge bench).

In R v Rae, above, the offender broke into the home of his former girlfriend, doused her in petrol, then set her alight. The sentencing judge described her injuries as “appalling” and her chances of a normal life “ruined forever”. On appeal, Sully J suggested the objective circumstances were within the worst category of crime (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256). The court also affirmed the continual need to condemn violence stemming from the breakdown of domestic relationships. Sully J said at [21]:

The Courts, including this Court variously constituted, have tried to make it clear beyond any doubting that the breakdown of personal relationships, marital and extramarital alike, cannot be allowed to justify vengeful violence of any kind, let alone extreme violence of the kind here relevant. The facts of this present case require, sadly from the points of view of all concerned, that the principles be reaffirmed with all proper resolve.

An offender acting as an accessory or principal in the second degree may not be as culpable as a principal, although much will depend on the circumstances of the offender’s involvement. In R v Doan [2003] NSWSC 345 at [10], the applicant’s conduct was described as “both minimal and reluctant”. In contrast, in R v AM [2001] NSWCCA 80 at [20], the applicant’s role in a contract killing was seen as crucial to carrying out the enterprise.

Mitigating factors

In the most serious attempted murder cases, the gravity of the crime may reduce the weight otherwise accorded to an offender’s subjective circumstances. For example in R v Rae [2001] NSWCCA 545, the injuries inflicted on the victim were so severe that the offender’s youth and absence of prior record carried less significance. Similarly, in R v Quach [2002] NSWCCA 173 (a two-judge bench) prior good character carried little weight in light of the seriousness of the attempted murder. However, it was an error for the sentencing judge to ignore good character entirely: at [19].

Mental disorder suffered by an offender at the time of an attempted murder, including depression, may be a mitigating factor: R v Thew (unrep, 25/8/98, NSWCCA); R v Macadam-Kellie [2001] NSWCCA 170 at [62]; see also R v Cheatham [2002] NSWCCA 360 at [134].

In circumstances where an offender would otherwise have been prosecuted for a less serious offence, but voluntarily discloses an intention to kill the victim, some measure of leniency is warranted: R v Bell [2005] NSWCCA 81 at [11]–[12].

In Davis v R [2015] NSWCCA 90, it was held that a pre-existing heart condition, which may have contributed to the death of the victim, was not a mitigating factor.

Comparison with homicide sentences

Given the serious and long-lasting injuries inflicted in many attempted murder cases, comparisons with more severe sentences imposed in cases involving death are generally unhelpful: R v Rae [2001] NSWCCA 545 at [19].

When sentencing an offender convicted of separate offences for both attempted murder and murder, the attempt may be relevant to assessing the culpability for murder, particularly in considering whether a life sentence is warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999: R v Villa [2005] NSWCCA 4 at [93].