McDonald v R

1. [1]

   BASTEN JA: On 27 July 2007 the applicant, William Andrew McDonald, was sentenced by Price J in the Supreme Court for the murder of Barry Shaw on 27 August 2005. Following a plea of guilty, the applicant was convicted and sentenced to a term of imprisonment with a non-parole period of 18 years and a balance of term of six years, giving an overall sentence of 24 years imprisonment. [1]

2. [2]

   Almost six years after the sentencing, the applicant filed a notice seeking an extension of time within which to seek leave to appeal. He is one of numerous offenders who have sought to appeal out of time as a result of the judgment of the High Court delivered on 5 October 2011, Muldrock v The Queen, [2] which identified error on the part of this Court in R v Way. [3] The error concerned the approach taken by this Court with respect to sentencing for offences subject to a standard non-parole period, under s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”).

3. [3]

   Murder is an offence for which a standard non-parole period was prescribed by the table to Pt 4, Div 1A of the Sentencing Procedure Act. The period relevant to the present case is 20 years.

4. [4]

   If a court imposed the standard non-parole period for a particular murder, in the absence of special circumstances, the balance of term would not exceed one-third of the non-parole period, being six years eight months. [4] In the present case, the sentencing judge adopted the statutory ratio between the non-parole period and the balance of the sentence.

5. [5]

   In the opening paragraph of his judgment on sentence, the judge referred to the maximum sentence for the crime of murder (imprisonment for life) and the standard non-parole period (20 years). After setting out the agreed facts and resolving certain factual matters which were then in dispute, the judge stated: [5]

6. [6]

   The judge then noted as a factor in mitigation that the murder was not planned. He continued: [8]

7. [7]

   Although the judge did not in terms refer to the decision of this Court in Way, the passages to which he referred in AJP and Simon were expressly formulated as applications of the principles established in Way. Accordingly, there is no reason to suppose that the sentencing judge was doing other than having regard to the standard non-parole period in accordance with the approach, then understood to be correct, as identified in Way. Applying the principles authoritatively stated by this Court, since determined to be erroneous, the judge was in error.

8. [8]

   The overruling of Way by the High Court in Muldrock led to a systematic reconsideration by solicitors within Legal Aid New South Wales of the many judgments in which Way had been applied. In the case of offenders who had not otherwise appealed, one of whom was the applicant, it was necessary to seek an extension of time within which to appeal. It then became necessary for this Court to consider in a number of cases whether, in the proper exercise of its discretion, it should grant such extensions of time. The correct approach to such applications was determined by the High Court in Kentwell v The Queen. [9] In the absence of some unusual circumstance, it will generally be appropriate to grant an extension of time in any case where (as will also be usual) a sentencing judge appears to have acted on the basis of the principles established in Way. So much was recognised by the Director in the present case, not opposing an extension of time.

9. [9]

   In his written submissions, however, the Director did assert that this Court would not be satisfied that the sentencing judge applied the principles derived from Way, the applicant having been sentenced following a plea of guilty and not following a trial. However, as the references to AJP and Simon referred to above demonstrate, the sentencing judge, as might be expected, carefully and correctly applied the law as then understood.

10. [10]

    Error having been established, it is necessary for this Court to now re-exercise the sentencing discretion, as required by Kentwell. [10]

Findings of sentencing judge

1. [11]

   The sentencing judge set out in his judgment the whole of the statement of agreed facts. [11] These need not be repeated: it is sufficient to identify the key issues of primary importance for present purposes.

2. [12]

   The case before the sentencing judge required the resolution of three issues relevant to the state of mind of the offender. These were (i) whether the attack involved a significant degree of pre-mediation, (ii) whether it was provoked by conduct of the deceased and (iii) whether, and if so when, the offender formed an intention to kill the deceased.

3. [13]

   The offender and the deceased knew each other. Both lived in Lalor Park. The offender was living with a companion, one Clayton Martin, who also knew the deceased. Martin and the offender had been drinking together at their home for much of the day when they decided, in the early evening, to visit the deceased. The deceased was alone when they arrived. He let them in and they shared cannabis. After about an hour the offender produced a knife.

4. [14]

   The reason for the confrontation between the offender and the deceased and the way it came about, as identified by the prosecution, was summarised by the sentencing judge in the following passage: [12]

5. [15]

   The trial judge noted that there had been earlier disagreements between the offender and the deceased and accepted the offender’s own evidence that he wanted an altercation with the deceased and was angry when he arrived at the deceased’s home. [13]

6. [16]

   There was, however, an issue as to why he had taken the knife with him. The judge noted that he had told police that he “did not normally carry a knife”, [14] but that he said to a psychiatrist briefed for the purposes of the sentencing hearing, Dr Bruce Westmore, that “I’ve always had a knife because I’ve been in prison, being in protection. You have to carry a knife because you can always have an altercation with someone outside.”

7. [17]

   The trial judge noted that his claim that he always carried a knife gained “some support” from three convictions for carrying a cutting weapon, but nevertheless concluded that he was “being disingenuous” in his statement to Dr Westmore. He noted that, in the course of his police interview, he had explained that the knife was one of 20 which he had stolen about two weeks earlier, to exchange for marihuana. The judge held: [15]

8. [18]

   The judge also rejected the offender’s evidence to the police as to why he had the knife, namely that he “just went there to show him at first and I don’t know, he just, … he grabbed it off me”. The judge then concluded: [16]

9. [19]

   The offender was in custody from 30 August 2005, being the date of his arrest. As appears from his prison disciplinary record tendered by the Director on the appeal, on 8 March 2006 he was searched in prison and found to be carrying a long piece of sharpened metal described as a “shiv”. That evidence, which was not before the sentencing judge, would have given further support to the statement he made to Dr Westmore and might at least have cast doubt on its characterisation as “disingenuous”. However, there is no challenge to the factual findings made by the sentencing judge and, in any event, both accounts may well be true. That is, the offender was in the habit of carrying a knife for protection, but on this occasion he deliberately armed himself with a knife because he sought an altercation with a man that he knew had many knives in the house.

10. [20]

    Although the judge was satisfied that “he deliberately armed himself with the knife before he went to the deceased’s home”, [17] he was not satisfied that the offender “pulled out the knife with the intention to kill or to inflict really serious bodily harm.” [18] He concluded that the offender “produced the knife with the intention of frightening the deceased which changed when the knife was grabbed from him.” [19]

11. [21]

    The offender suffered cuts to his knee in the course of the struggle which ensued after the deceased grabbed the knife from him. There was an issue as to whether the deceased had slashed at the offender with the knife or whether the cuts had occurred incidentally in the course of the struggle. Counsel for the offender had contended that the offender was slashed, as a basis for a submission that he had been provoked by the deceased, not to an extent relevant to liability, but as a factor mitigating the subsequent assault. The judge was not satisfied that the offender had been provoked in that sense. [20]

12. [22]

    The final factual issue concerned the offender’s intention. After the deceased grabbed the knife, the offender was able, almost immediately, to recover the weapon. The judge succinctly described what then happened in the following terms: [21]

13. [23]

    Although noting the offender’s denial to the police of an intention to kill, the judge concluded that “the only rational inference to be drawn from all the circumstances beyond reasonable doubt is that the intention to kill was formed following the struggle with the deceased over the knife.” [23]

14. [24]

    The sentencing judge was not satisfied that the offending warranted a sentence of life imprisonment. [24] Clearly that finding was appropriate. Despite the frenzied and somewhat inexplicable attack, the fact that the offender went to the home of the deceased in order to frighten him because of an earlier assault on his friend, supports the view that the case does not fall within the worst category of murder. Although the sentencing judge was not satisfied that the offender responded to provocative conduct on the part of the deceased, he did conclude that an intention to kill only arose after the deceased had taken the knife from him and he had then been able to recover it. As the sentencing judge stated: [25]

15. [25]

    While acknowledging that there had been “no explicit statement of remorse for the murder”, the judge accepted that answers given in the course of the police interview involved recognition by the offender that what he did was wrong and “some regret” for his conduct. The judge took into account his “co-operation with the police and his plea of guilty as evidencing contrition for the offence.” [26]

16. [26]

    The judge had regard to the plea of guilty which, although entered only on the first day on which the trial was listed, had been agreed to (and the Court advised) during the preceding week. Counsel for the offender had submitted in writing that “[w]hile conviction for a homicide offence was inevitable that inevitability flowed in some good measure from the admissions made.” It was not inevitable, the submission continued, that he would be convicted of murder and the need for relevant psychological and psychiatric evidence, including as to his affectation by drugs and alcohol, were matters properly requiring investigation and consideration by counsel before a plea to murder could be entered.” So much was accepted: [27] a discount “for the utilitarian effect of his plea and for his contrition” was assessed at 20%. [28]

17. [27]

    The conjunction of a discount for the utilitarian value of a plea, being the advantage derived by the criminal justice system from a plea of guilty, and evidence of contrition, is not in accordance with current practice, following the decision of this Court in R v Borkowski. [29] However, Borkowski was handed down some two years after the decision presently under appeal. At the time of sentencing, the relevant principles had been identified in less inflexible language in R v MAK; R v MSK: [30]

18. [28]

    In any event, the purpose is not to criticise the sentencing judge for the approach adopted in granting the discount, but rather to understand its effect. As he referred to MAK and MSK in the following paragraph of the reasons for judgment, it may be assumed that the discount was primarily intended to reflect the utilitarian value of the plea.

19. [29]

    The sentencing judge described the offender’s criminal history as “unattractive”. He was correct to conclude that it warranted little by way of leniency. Apart from convictions for possession of drugs and dishonesty, he had been convicted of carrying a cutting weapon, possession of an unlicensed pistol, together with offences of violence (assault, May 1983), maliciously inflict grievous bodily harm (December 1989) and robbery (August 1996). This record required weight to be given to considerations of personal deterrence and protection of the community. [38]

20. [30]

    The judge also noted that he had been on three bonds at the time of the offending and had been subject to conditions that he accept drug and alcohol counselling. [39]

21. [31]

    The account given by the sentencing judge of the offender’s personal circumstances is deeply depressing. As the judge noted, he was 40 years of age at the time of the murder and 42 years of age at the time of sentencing. The judge continued: [40]

22. [32]

    The judge concluded: [41]

23. [33]

    The judge concluded that an appropriate (undiscounted) sentence was imprisonment for 30 years. That would have given a non-parole period of 22.5 years. Although not a life sentence, the sentence would have extended until he was 70 years of age; the non-parole period would have extended until he was over 62. The discount of 20% was applied to reduce each period.

Resentencing

1. [34]

   The factual findings set out above not being challenged must form the basis of resentencing. The standard non-parole period provides a guide post. The objective seriousness of the crime is a central factor in determining an appropriate sentence, but no assessment by reference to the uncertain statutory concept of “the middle of the range for objective seriousness” is required. The objective seriousness of the conduct is closely bound up with, and the primary evidence of, the offender’s state of mind at various points in time. His moral culpability must be assessed by reference to these matters, in the light of his personal circumstances.

2. [35]

   Because a lengthy sentence is inevitable, if only to reflect strong disapprobation of a brutal killing, the community has a large interest in its likely consequences. However, to characterise prospects of rehabilitation over such a long period is an exercise in speculation. It is undoubtedly true that he is likely to be “institutionalised” when released, to a greater extent than is presently the case. On the other hand, he will not become inebriated on a daily basis, as appears to have been his custom in recent years when at large. Although it is likely that he would have some access to drugs in prison, it is unlikely that his psychiatric diagnosis will continue to include alcohol and substance abuse. That he will be released at some stage during his life expectancy, should be accepted. Nor, in fixing a determinate sentence, is the Court to assume that he will necessarily be released on the expiration of his non-parole period, a consideration which is not to deny usual expectations. In reality, the effect on the offender, in terms of rehabilitation and deterrence is unlikely to be affected greatly, even if the sentence imposed were significantly reduced.

3. [36]

   The most powerful determinant of the sentence in the present case must be an expression of the community’s revulsion at what became, if initially unintended, an horrific and vicious attack upon a man who had offered the offender no proportionate provocation and from whom both the offender and his companion Martin could have kept their distance if indeed they had reason to dislike him.

4. [37]

   The circumstances warranting a severe sentence, and having regard to the possible maximum sentence and the standard non-parole period, would be satisfied by imprisonment for 25 years. Giving a 20% discount in accordance with the finding of the sentencing judge, there should be a non-parole period of 15 years with a balance of term of five years. The overall sentence would thus be 20 years. The sentence should be fixed to have commenced on 30 August 2005; the non-parole period will expire on 29 August 2020.

Orders

1. [38]

   The Court should make the following orders:

2. [39]

   R A HULME and ADAMSON JJ: As noted in the judgment of Basten JA at [5] and [9], the sentencing judge had specific regard to the judgments of this Court in R v AJP [2004] NSWCCA 434 and R v Simon [2005] NSWCCA 123. Before coming to the significance of this it is first appropriate to have regard to the fact that in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [68] it was held that “the standard non-parole periods in the Table [to Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)] must also be taken as having been intended for a middle-range case where the offender was convicted after trial”. A plea of guilty was taken to be a reason not to impose the standard non-parole period.

3. [40]

   Price J’s reference to R v AJP included specific reference to paragraph [18] of the judgment of Simpson J. To provide some context it should be noted that the case involved a Crown appeal against a sentence imposed for a standard non-parole period offence (sexual intercourse with a child under the age of 10) following a plea of guilty. The sentencing judge assessed the offence as falling within the middle of the range of objective seriousness. The Crown contended that, upon the sentencing judge having determined not to impose the standard non-parole period, he then disregarded it completely. The error identified in R v AJP was that the sentencing judge had failed to have regard to the standard non-parole period although it was a relevant consideration.

4. [41]

   Simpson J stated:

5. [42]

   R v Simon was an offender’s appeal against the severity of a sentence imposed for a standard non-parole period offence (inflicting grievous bodily harm with intent to cause grievous bodily harm). One of the grounds of appeal involved a contention that the sentencing judge had found special circumstances but had used that finding to increase the balance of the term of the sentence rather than reduce the non-parole period. It was in the context of dealing with that ground that Howie J said the following in the paragraph specifically referenced by Price J in the present case:

6. [43]

   By his specific reference to these paragraphs in R v AJP and R v Simon, we take Price J to have been acknowledging the then perceived orthodox approach in relation to sentencing for offences for which there is prescribed a standard non-parole period: that in cases where the standard non-parole period does not apply because there was a plea of guilty, it remains relevant as a benchmark or guidepost.

7. [44]

   What was held in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 to be an erroneous approach was to give a standard non-parole period “primary” or “determinative significance” (at [26]) or “to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period” (at [28]).

8. [45]

   Muldrock held (at [27]) that the obligation of a sentencing court was “to take into account the full range of factors in determining the appropriate sentence for the offence”, adding that “[i]n so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period”.

9. [46]

   This is what we believe Price J did in the present case. He made an assessment of the objective seriousness of the offence. Having concluded that it was “in the upper half of the middle range of objective seriousness” he did not then inquire whether there were matters justifying a longer or shorter non-parole period than the standard prescribed. He immediately turned to note the maximum penalty of life imprisonment (the maximum penalty being the other of the two relevant legislative guideposts) and concluded that it should not be imposed. He then proceeded to a consideration of various subjective matters and made findings in relation to each: remorse; the plea of guilty; co-operation with the police; the discount for the utilitarian value of the plea and contrition; the applicant’s criminal history; the relevance of alcohol consumption prior to the offence; the applicant’s most unfortunate life history; Dr Nielssen’s assessment; and the applicant’s prospects of rehabilitation.

10. [47]

    Senior counsel for the applicant submitted that his Honour’s approach was “formulaic” and exhibited “all the signs of a ‘two stage’ approach to sentencing the applicant with the standard non-parole period holding centre stage” (AWS [13]). With respect, we cannot discern his Honour having adopted such an approach at all. It ought not, in our view, be lightly inferred that a judge has acted otherwise than in accordance with the then applicable law: Williams v R [2012] NSWCCA 172 at [2] – [4] per Allsop P.

11. [48]

    This Court’s authority to intervene depends on the demonstration of error: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [11]. As we do not discern error arising from the sole proposed ground of appeal, there is no warrant for this Court to interfere with the sentence passed.

12. [49]

    Despite the Crown’s concession, we would refuse the application for an extension of time on account of there being no merit in the proposed ground of appeal.

13. [50]

    We propose the following order: