Roff v R

1. [1]

   THE COURT: In 2016, a Supreme Court jury found the applicant, Mr Raymond Isaac Roff, guilty of having murdered of Mr Alois Rez at Dubbo on 29 July 2013. He had been arrested on 9 August 2013. He was sentenced to imprisonment for a non-parole period of 24 years commencing 9 August 2013 with a balance of term of 8 years. He seeks leave to appeal against that sentence.

2. [2]

   When, in August 2016, sentence was imposed, the applicant was 54 years old. When the non-parole period expires in August 2037 and he is eligible to apply for parole, he will be 75 years old.

3. [3]

   There are three grounds of appeal:

   1. (1)

      Failing to take into account his subjective case in determining the overall sentence and the non‑parole period;

   2. (2)

      Setting a longer non‑parole period by reason of the absence of remorse or any acknowledgement of guilt, which was said to treat his conduct of his defence as an aggravating factor, and to take into account factors which were not “objective” factors for the purposes of s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW);

   3. (3)

      The sentence was manifestly excessive.

4. [4]

   Sentence was imposed on 19 August 2016, on which date the primary judge delivered a judgment which, with respect, carefully and clearly explained the reasons for that sentence: R v Raymond Roff [2016] NSWSC 1151. A minor extension of time is required to bring this appeal, which was opposed by the Crown. However, the extension was explained by an affidavit from the applicant’s solicitor, and the prospects of success are relevant to the exercise of the discretion to extend time pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW): see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [33]. For the reasons below, there should be an extension of time.

Background

1. [5]

   In 2013, the applicant was 51. His wife for over 30 years had for many years displayed symptoms of mental illness, following the death of their 3rd child, and had been diagnosed with bipolar disorder and schizophrenia, leading to frequent self‑harm and attempts to take her own life. Throughout that time, it seems that the applicant had supported her. The primary judge recorded that:

2. [6]

   The applicant’s wife was diagnosed with cancer in 2010 and died some two years later. The events leading to the murder of Alois Rez commenced shortly after her death.

3. [7]

   No issue was taken with the description given by the primary judge to the background to and carrying out of the murder at [14]-[44] of his Honour’s judgment. Despite their length, those paragraphs should be reproduced in their entirety, for two reasons. The first is so that these reasons may be self-contained. The second is that any summary by this Court, which has not seen the evidence unfold during the trial, and does not even have the transcript of the evidence, would unavoidably fail to capture the nuances in the trial judge’s account.

4. [8]

   The balance of his Honour’s reasons may be summarised as follows. His Honour had regard to the use of a stupefying drug, the fact that the murder was committed in company and was part of a planned criminal activity, and that the victim was killed in his own home as aggravating factors in accordance with s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour put to one side the fact that violence was used in the infliction of substantial harm, those features being inherent in the offence charged.

5. [9]

   In relation to mitigating factors in s 21A(3) of that Act, his Honour stated that the applicant was entitled to credit for the absence of any relevant prior convictions and for his prior good character and formed the view that his prospects of rehabilitation were good: at [47].

6. [10]

   His Honour dealt with the topic of remorse and the effect on the victim’s family at [48] and [49] as follows:

7. [11]

   At [50], his Honour stated that this was the applicant’s first time in prison, that discomfort from his work injury would likely worsen as years advanced and would be harder to cope with than would be under the care available outside the corrective system. His Honour said that he had regard to those factors towards lenience “for such weight as I can give them”: at [50].

8. [12]

   Under the heading “Reasons for exceeding standard non‑parole period”, his Honour stated:

9. [13]

   His Honour declined to find special circumstances at [53] and had regard to two comparable cases at [54]. Neither of these aspects of the decision was criticised on appeal.

10. [14]

    At [55]-[59], his Honour took into account a relatively minor offence under the Firearms Act 1996 (NSW), and had regard to the fact that in 1981 he had discharged a rifle near a public place and “after reporting himself to police” became subject to a bond imposed by the Local Court in Dubbo. His Honour stated that although he took that offence into account, he considered that it made no significant difference to the sentence that would have been imposed in any event.

Ground 1 – Failing to take into account applicant’s subjective case

1. [15]

   Although this was the first ground of the appeal, it was dealt with at the conclusion of the applicant’s oral submissions. As advanced orally, it came close to amounting to an explanation for what, so it was contended, was a manifestly excessive sentence. That will be addressed under ground 3, in relation to which an explanation is not required, for as Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]:

2. [16]

   The difficulty facing this ground, considered alone, is that, as is apparent from the summary already given, his Honour’s reasons are replete with regard being had to the powerful subjective circumstances of the applicant. The primary judge took some pains to explain how the crime had been proposed by Ms Tarrant and was executed by him as a consequence of his feelings for her. His Honour also referred expressly to his absence of prior convictions, his prior good character, the unlikelihood of any further reoffending, and his prospects of rehabilitation: at [47].

3. [17]

   To the extent that this ground is a free-standing challenge to the sentence imposed, it is not made out.

Ground 2 – the absence of remorse as an aggravating factor

1. [18]

   Although expressed as a single ground, there were in substance two separate arguments contained within it. The first was that his Honour had used the absence of any remorse on the part of the applicant to impose a more severe sentence.

2. [19]

   It was common ground that the absence of remorse and denying the knowledge or whereabouts of the deceased’s body could not operate to aggravate the term of sentence. In Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22] it was stated that:

3. [20]

   See also (by way of example) Hadchiti v R [2016] NSWCCA 63 at [171]-[172]. In R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [5], this Court observed that Siganto affirmed the significance and validity of a distinction between not increasing a sentence by reason of a plea of not guilty and granting leniency by means of discount from pleading guilty.

4. [21]

   There being no dispute as to the operation of principle, the only question arising on this ground was whether reading the reasons for sentence as a whole, and looking at their substance and not merely form (see for example Riggio v R [2015] NSWCCA 223 at [94]), the primary judge in fact relied upon the absence of remorse or acknowledgement of the crime as an aggravating feature.

5. [22]

   The applicant submitted that this was the natural meaning of [51] which is reproduced above. The Crown’s response was that the reasons were to be read as a whole, and that the absence of remorse should be regarded as a matter on which the primary judge relied so as to explain what was otherwise stated to be a heavier sentence. As it was put, the effect of the finding of remorse was “that this mitigating factor could not be made out and therefore could not operate to ameliorate the sentence”.

6. [23]

   Two considerations make this point one which is finely balanced. The first is that in [51] his Honour in terms identified as the second of the three principal reasons which led to his decision to impose a non-parole period which exceeded the statutory standard “the aggravating features referred to at [46]”. It might fairly be said to follow, on a natural reading of this part of the reasons, that his Honour’s reliance on the absence of remorse and acknowledgement which was the third of the three principal reasons was regarded by his Honour as not comprising an aggravating feature.

7. [24]

   The second is the approach taken by s 21A(1) of the Crimes (Sentencing Procedure) Act, which requires a court imposing sentence to take into account both the aggravating factors referred to in subsection (2) and the mitigating factors referred to in subsection (3) insofar as they are relevant and known to the court. The subsections treat different factors differently. As it was put in the applicant’s written submissions:

8. [25]

   The distinction mandated by the structure of s 21A may seem to be a fine one. An offender who is found to be remorseful, in the particular way required by s 21A(3)(i), is entitled to the benefit of that finding in mitigation, and if other things are equal, may anticipate a lesser sentence than a co-offender who has not been found to be remorseful. Thus the absence of remorse may explain why a heavier sentence was imposed upon the co-offender, insofar as it has the consequence that the offender has not been able to establish the mitigating factor of remorse. However, as was common ground on appeal, regard may not be had to the absence of remorse in imposing a heavier sentence.

9. [26]

   The fineness of the distinction makes this aspect of this ground of appeal quite technical. However, on balance, we are of the view that, on a fair reading of the reasons, that is what his Honour did. His Honour explained at [51], under the heading “Reasons for exceeding standard non‑parole period”, that he had 3 principal reasons for fixing a longer non‑parole period, the third of which was “the absence of remorse or of acknowledgment of his crime”. His Honour went on, at [52], expressly to say that each of those three considerations, including the absence of remorse or acknowledgement of the crime, were evaluated for the purposes of s 54B(3) of the Crime (Sentencing Procedure) Act. The natural meaning of his words was that the absence of remorse and acknowledgement was used to produce a longer non-parole period. This aspect of this ground is made out.

10. [27]

    The second aspect of this ground turned on s 54B(6) of the Crimes (Sentencing Procedure) Act, which is as follows:

11. [28]

    Section 54B applies when sentence is imposed in respect of an offence for which there is a standard non-parole period: s 54B(1). Subsection (2) requires regard to be had to the standard non-parole period, but does not limit the matters which are otherwise permitted or required to be considered. Subsections (3), (4) and (5) impose obligations on the Court to make a record in certain circumstances. Subsection (3) provides that the Court “must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account.” Subsections (4) and (5) apply in a broadly similar fashion to aggregate sentencing. Subsection (7) provides that a failure to comply with this section does not invalidate the sentence.

12. [29]

    The lynchpin of the applicant’s submission was that the applicant’s subjective matters could not be taken into account in determining the non-parole period. The starting point for the argument was the reference in s 54A(2) to “the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”. It was said that in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [28] it was held that Div 1A of Part 4 of the Act did not require or permit the Court to embark upon a two-stage approach to sentencing, involving first assessing whether the offence falls in the middle range of objective seriousness, and, if it does, then asking whether there are matters which warrant a longer or shorter non-parole period.

13. [30]

    Those first two propositions are unexceptionable. However, it was then submitted that s 54B(6) “puts that [viz, the proposition from Muldrock above] into legislative effect”. The submission proceeded:

14. [31]

    It is here that the applicant’s alternative submission falls down. First, essential to the applicant’s submission is that s 54B(6) imposes a requirement. But that is not how the subsection operates. It does not impose any requirement. To the contrary, it confirms that the requirements in subsections (3), (4) or (5) to make a record do not require the Court to do certain things (namely, to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable). Section 54B(6) does not circumscribe the matters to which the Court may have regard in setting the non-parole period. Instead, it relaxes one aspect of the obligation to “make a record” of some of the integers which contribute to the sentence in fact imposed.

15. [32]

    Moreover, it will be seen that s 54B(2) provides in terms that the matters to which account must or may be taken are not limited by the standard non‑parole period.

16. [33]

    Accordingly, we cannot accept this second aspect of the applicant’s submission on ground 2.

Ground 3 – Manifestly excessive sentence

1. [34]

   The applicant’s murder of Mr Rez was calculated and cold‑blooded. It took place in Mr Rez’ own home, after he had been drugged by his wife. It was premediated, and was found to have been raised by Ms Tarrant two months earlier (at [25]), although the sentencing judge found that the “concrete plan” for killing Mr Rez had only been formed three days beforehand (at [31]). The trial judge found (beyond reasonable doubt) that the applicant planned to promote a story that a bikie gang had kidnapped and eliminated Mr Rez.

2. [35]

   The applicant has never expressed any remorse for his crime. It is difficult to convey the loss to the surviving members of Mr Rez’ family, especially his young children.

3. [36]

   That said, there are a number of features which powerfully favour the applicant in the sentencing process. The sentencing judge found to the criminal standard that Ms Tarrant had told the applicant that she wanted Mr Rez “gone”, and that that had led to the offence. The offence was not motivated by financial gain. There appears to have been no special cruelty in the manner of inflicting death. The crime was not committed in furtherance of, or to conceal, another crime. The applicant has a clean criminal record, save for a minor firearm offence some decades ago. He had a difficult upbringing and faced adversity during his married life. There is no prospect that the circumstances accompanying this crime will recur.

4. [37]

   The sentencing judge found that the applicant has been “significantly physically disabled” since a work accident in April 2003, in which he put himself in danger to prevent injury to a workmate. The applicant “had been a faithful husband for over 30 years and a loving and interested parent” (at [13]) and was deeply affected by the death of his wife. Although it is no justification, the applicant’s actions were motivated by his “sincere and decent” feelings for Ms Tarrant.

5. [38]

   In short, and as stated by the sentencing judge at [5]:

6. [39]

   Weighing up all of those matters, a head sentence of 32 years is outside the range of sentence which could have properly been imposed.

Resentencing

1. [40]

   The result is that there must be an extension of time and the appeal must be allowed. It was accepted that in those circumstances, this Court should proceed to resentence. The Crown did not seek to defend orally its submission advanced in writing that even if any of grounds 1-3 were made out, no lesser sentence was warranted in law. With respect, it is very difficult to see how that submission can be available when the grounds include one of manifest excess.

2. [41]

   The matters bearing upon the appropriate sentence are those summarised in ground 3 above, and in light of the careful and detailed background description given by the sentencing judge reproduced above. The applicant should be resentenced to a term of imprisonment of 25 years with a non‑parole period of 18 years and 9 months, commencing on 9 August 2013.

3. [42]

   We make the following orders: