Murder Sentence Upheld in Joint Criminal Enterprise Case

In a joint criminal enterprise resulting in death, the Court of Criminal Appeal affirmed the severity of the sentence, rejecting arguments that the level of planning should have resulted in a lesser sentence.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2016] NSWCCA 300 Hearing dates: 28 November 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Before: Hoeben CJ at [NAME] at [1] [NAME] at [80] [NAME] at [87] Decision: (1) Leave to appeal against sentence granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – murder – applicant was mother of principal assailant – participation in joint criminal enterprise resulting in death of [NAME] – applicant actively encouraging principal assailant – objective criminality substantial – whether parity principle properly applied – whether level of planning should have been given "real weight" – whether s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) properly applied – need to resentence – no lesser sentence warranted – appeal dismissed. Legislation Cited: Crimes Act 1900 – s 18 Crimes (Sentencing Procedure) Act 1999 – s 21A Criminal Appeal Act 1912 - ss 5(1)(c), 6(3) Cases Cited: Fahs v Regina [2007] NSWCCA 26 Giorgianni v The Queen [1985] HCA 29;156 CLR 473 House v R [1936] HCA 40; 55 CLR 499 [NAME] v R [2016] NSWCCA 185 Mulato v R [2006] NSWCCA 282 Pearce v R [1998] HCA 57; 194 CLR 610 R v KB; R v JL; R v [NAME] [2011] NSWCCA 190 R v Swan [2006] NSWCCA 47 RL v R [2015] NSWCCA 106 Category: Principal judgment Parties: [NAME] – Applicant Regina – Respondent [NAME]: Counsel: [redacted] [NAME] - Respondent [NAME]

Solicitors: [redacted] [NAME] – Respondent [NAME](s): 2012/338749 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v [NAME]; R v [NAME] [2015] NSWSC 1101 Date of Decision: 07 August 2015 Before: Garling J File Number(s): 2012/338749

Judgment 1. HOEBEN CJ at [NAME]: Offences and sentence On 4 May 2015 the applicant was arraigned before Garling J and a jury of twelve on a charge of murder, contrary to s 18 of the Crimes Act 1900. This offence carries a maximum penalty of imprisonment for life with a standard non-parole period of 20 years. The applicant was tried jointly with her husband, [NAME].

1. On 30 May 2015 the jury delivered a verdict of guilty of murder with respect to both offenders.

2. On 7 August 2015 Garling J sentenced the applicant and [NAME] as follows: The applicant – imprisonment with a non-parole period of 15 years, commencing 22 November 2012 and expiring 21 November 2027 with a balance of term of 7 years expiring 21 November 2034. [NAME] – imprisonment with a non-parole period of 12 years, commencing 22 November 2012 and expiring 21 November 2024 with a balance of term of 6 years expiring 21 November 2030.

1. The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon her. Factual background 1. In summary the [NAME] case was that on 28 October 2012 the applicant, [NAME] and [NAME] (the applicant's son) confronted, [NAME] ([NAME]), in response to a dispute between [NAME] and him over an increase in the [NAME] of the cannabis that [NAME] was supplying him.

2. During the course of the confrontation [NAME] inflicted a number of blows, including the fatal blow to [NAME]'s head, using a wooden mattock handle. This caused a skull fracture and subdural haematoma. The applicant struck [NAME] in the head with a hammer and [NAME] attacked [NAME] using a fishing rod. Both offenders encouraged and assisted [NAME] in his assault on [NAME]. 3. [NAME] was 24 years old at the time he killed [NAME]. [NAME] was aged 47 when he died. They had known each other for some time and were associated in the world of illicit drugs. [NAME] from time to time supplied cannabis to [NAME]. 4. [NAME] was living as a squatter in a house in [ADDRESS], Coffs Harbour which had been abandoned by its owners. On the morning of 28 October 2012 [NAME] visited a drug supplier in Woolgoolga, a town to the north of Coffs Harbour. [NAME] told [NAME] that he would purchase drugs for him but that there would be an increase in the [NAME] of the cannabis. [NAME] was offended by the [NAME] increase and a dispute arose between them.

5. Upon his return from visiting the drug dealer, communication between [NAME] and [NAME] continued but its tone degenerated significantly. The tone, largely on the part of [NAME], became increasingly aggressive, offensive and tended to be incoherent. At one point [NAME] threatened to sexually assault [NAME]'s heavily pregnant partner.

6. At about 3.00pm [NAME], apparently, in an attempt to calm things, sent [NAME] a text which said: "one more bad call or text, this is your warning, pull up".

1. At around that time, [NAME] contacted the applicant, who was then at her home with [NAME]. They discussed what was going on, and either [NAME] sought her assistance, or she offered to assist him. As a result of that contact, the applicant made contact with [NAME] via a text message which read: "Don't f*** with people you don't know. [NAME], mum and dad f***wit go it"

1. It was clearly the applicant's intention to involve herself in the dispute between [NAME] and [NAME]. She wanted to make it appear that [NAME] had the support of both herself and [NAME], and that [NAME] should know that he was confronting all of the members of the family and not just [NAME].

2. After a further discussion of the matter with [NAME] over the telephone, the applicant sent a text message to [NAME] which, (omitting profanities) read" "You got a problem with [NAME], you got a problem with his kin and we no Fernando too dickhead" (sic).

1. A little later, at 3.32pm, [NAME] sent the applicant a text saying: "He's still going, says he waiting for me and says I'm out of town and says I'm a big girl hiding behind mummy". About 10 minutes later, [NAME] sent a further text to the applicant saying: "Still going right on with it". Very shortly after that, about a minute or so later, [NAME] sent a text to the applicant, which read: "I want to go kick his teeth in, its message after message".

1. At 4.13pm, when the applicant and [NAME] were driving from their home to collect him from his home, [NAME] sent a final text message to the applicant saying: "He keeps calling and calling over and over saying bad s*** and saying 'come on where are you' ".

1. The applicant and [NAME] lived about a six minute drive from [NAME]'s house. It was about an eight minute drive from his house to where [NAME] lived.

2. The applicant, upset over the way in which [NAME] was dealing with [NAME], and apparently concerned for his well-being, decided that she would take him to confront [NAME] in order to resolve the escalating dispute.

3. The applicant armed herself with a hobby hammer before leaving the house. [NAME] got into the car. He apparently did not see the hammer. There was a fishing rod in the car which [NAME] later used to attack [NAME]. They drove from their house to collect [NAME]. When they arrived at his house at about 4.15pm, he was waiting for them and was holding a wooden mattock handle. This implement was solid and a little under 1m in length. Both the applicant and [NAME] could see the mattock handle being carried by [NAME] to the car. He got into the car and the three of them drove together to [NAME]'s house. 4. [NAME] did not know the precise content of the text messages, nor the contents of the telephone calls between the applicant and [NAME]. He did, however, have some knowledge of what was going on. He knew, in general terms, that there was a dispute between [NAME] on the one hand, and his step-son and wife on the other. He knew that, as a group of three adults, they were going to confront [NAME] and that [NAME] was armed with the wooden mattock handle.

5. When he got out of the car at [NAME]'s house, [NAME] took the fishing rod with him. By that time he knew that the proposed confrontation would likely be a violent one, and he armed himself with an available weapon.

6. The applicant knew at an earlier time namely, when she picked [NAME] up from his house, and while she was driving him to [NAME]'s house, that he intended to assault [NAME] and, having regard to the nature of the weapon which he was carrying, that any assault would be likely to cause serious physical injury. The applicant would have been aware that one blow of the mattock handle wielded by a much younger and stronger man against an older man was likely to cause serious physical injury. This must have been obvious to both the applicant and [NAME].

7. When they arrived at [NAME]'s house, there was a confrontation. Each of the participants was armed in one way or another. [NAME] had the wooden mattock handle, the applicant had the hobby hammer and [NAME] was carrying a fishing rod which was 1.75m long. [NAME] was armed with a number of knives.

8. The initial confrontation was between the applicant and [NAME]. She was yelling very aggressively at him from about 30cm away. She was "… in his face …". She was using a loud voice which was heard by people up to 50m away. There was some kind of physical shoving between them. [NAME] produced his knife or knives, and threatened the applicant with them. The group moved out towards the middle of the roadway, and then back to the grass verge and driveway area of [NAME]'s house. It was a dynamic situation.

9. After the applicant was initially threatened by [NAME], both [NAME] and [NAME] stepped forward and threatened to hit him. At a point in time early in the course of the confrontation, and after an initial blow had been delivered by [NAME], the applicant stepped forward and hit [NAME] on his forehead with the hammer. This caused a laceration to [NAME]'s scalp and a good deal of blood flowed from the laceration and dripped onto the hammer, which the applicant then dropped.

10. Shortly afterwards, when [NAME] produced another knife, [NAME] struck him with a series of blows. The first blows, aimed at [NAME]'s right hand and left arm, disarmed him and caused bony fractures to the hand and forearm forcing [NAME] to his knees. Although injured by these blows, he managed to get up.

11. At this time, [NAME] stepped forward and, over a relatively short time, struck [NAME] four times with the fishing rod that he was carrying. These blows landed on the outside of [NAME]'s upper back. At that point in time, [NAME] must have been leaning forward, bent at about the waist. He was not in an aggressive stance.

12. A further series of blows were then delivered by [NAME] to [NAME]. These blows caused the balance of his injuries and caused [NAME] to fall to the ground where [NAME] administered the final blow causing his death. As [NAME] was inflicting these blows, he was heard to say on two occasions that he was going to kill [NAME].

13. The blows delivered to [NAME] by [NAME] were done with significant and severe force. It was a brutal and unremitting assault.

14. The blow delivered by the applicant to [NAME]'s head was done with moderate force. It was not a "slight tap".

15. The blows delivered to [NAME] by [NAME] were delivered with moderate force because of the clear and obvious marks which they left on [NAME]'s body.

16. At the conclusion of the assault, the three perpetrators left the scene. [NAME] and the applicant left slightly before [NAME]. They all walked west up [ADDRESS]. As they did so, the applicant instructed [NAME] to dispose of the mattock handle in an adjoining property. [NAME] disposed of his fishing rod and a broad-brimmed hat which he was wearing. The applicant then drove both of them from the scene of the assault.

17. In the course of police investigations, both the applicant and [NAME] gave interviews to the investigators on 30 October 2012. On 16 November 2012 the applicant gave a second interview. In those interviews both offenders gave a version of the facts which was largely false. Each version accepted that they were at the scene but was designed to exculpate themselves from any culpable involvement in the death of [NAME]. Remarks on sentence 1. Garling J specifically rejected the applicant's evidence that she was attempting to defuse the situation in order to achieve a peaceful outcome. [NAME] rejected that proposition on the basis that a mother does not drive her son, whom she knows is armed with a weapon capable of causing serious harm and whom she knows to have violent tendencies, to the scene of a confrontation when she herself is also armed. [NAME] found that at no time after she arrived at [NAME]'s house did the applicant do anything which remotely suggested that she went there to attempt to make peace with him. 2. [NAME] then had regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and identified what he regarded as relevant aggravating and mitigating factors. 3. [NAME] found that the murder involved the actual use of violence and the actual use of a weapon by [NAME]. [NAME] regarded those factors as aggravating matters insofar as the applicant and [NAME] were concerned because in addition to what [NAME] was doing, each armed themselves with a weapon and both used violence and that weapon in the course of the physical assault which occurred to [NAME]. [NAME] found that even though the use of their weapons and their resort to the use of violence did not cause the death of [NAME], their conduct was a clear encouragement to [NAME] to do what he did. [NAME] regarded those matters as aggravating factors. 4. [NAME] found that because each offence was committed in company, this was also an aggravating factor. [NAME] found that although [NAME] was a squatter, the offence was committed in a backyard and driveway area of his home. [NAME] found that this was an aggravating factor, he did not give it any real weight in the sentencing process.

5. In relation to planning, [NAME] set out his findings as follows: "66 Finally, it will be an aggravating factor if the offence was part of a planned criminal activity. I am satisfied that whilst there was no plan to go and kill [NAME], nevertheless it was the intention of [NAME] that she and the other two males would go and confront [NAME], having each armed themselves with a form of weapon. [NAME] was a knowing participant in the activity described in this general way. 67 It was obvious to [NAME] from the time that her son got into the car, that an assault was likely to take place and she willingly participated in enabling that confrontation to occur. I am satisfied that she knew that it was [NAME]'s intention to inflict grievous bodily harm. After all, as she told the investigating police, she thought that [NAME] was going to "bash [NAME]' brains in". In [NAME]'s case, I am satisfied that this assault occurred in the course of a planned criminal activity. This is an aggravating factor of real weight." 1. [NAME] found that [NAME] did not know that the confrontation was likely to be a violent one at any time before he got out of the car at the scene. [NAME] found that there was no pre-planning of any significance associated with his actions. [NAME] found that by the time [NAME] realised what was going to happen, it was so close to the event that any notion of pre-planning did not merit being assessed as a significant aggravating factor. 2. [NAME] next took into account mitigating factors. 3. [NAME] found that the offending was provoked by [NAME] in that part of the conduct of the applicant, namely striking [NAME] in the head, was an immediate retaliation for his initial physical threat to her with a knife. [NAME] noted, however, that it did not amount to provocation as set out in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999. 4. [NAME] found as an important mitigating factor that the applicant did not have any significant record of previous convictions. Nevertheless, he was not prepared to find that she was a person of past good character. [NAME] did find that because of the applicant's maturity, her progress since going into custody and her general attitude to what had occurred that she was unlikely to re-offend. [NAME] found that the applicant had good prospects of rehabilitation. 5. [NAME] accepted that the applicant felt morally responsible for what occurred and that her expressions of regret were genuine. In that regard, [NAME] found that the applicant had accepted responsibility for her actions and had acknowledged their consequences. These were taken into account by him as mitigating factors.

6. In relation to [NAME] found that before this offence he was a person of good character and that his only conviction was for a driving offence some years before. [NAME] regarded that and the absence of any previous convictions as mitigating factors. [NAME] was satisfied that [NAME] was unlikely to re-offend and had good prospects of rehabilitation. [NAME] regarded those as important factors to be taken into account and to which he gave significant weight.

7. On the other hand, [NAME] was not satisfied that [NAME] had demonstrated remorse by accepting responsibility for his actions and acknowledging any of the consequences of his conduct. 8. [NAME] assessed the objective seriousness of the offending. [NAME] assessed the applicant's criminality as serious. [NAME] said: "84 … Knowing of the dispute between her son and [NAME], she armed herself and drove to her son's house in order to collect him and drive him to a confrontation. She knew when she collected him that he was armed with a very substantial weapon. She knew of his intention to cause serious physical injury. She continued to drive him to the scene of the confrontation. Upon arrival she was the first to engage in a verbal confrontation with [NAME] and, at an early part during the assault, struck him on the head with a hammer. She remained at the scene in close proximity to what was occurring. Then, as she and the others left together, she advised or instructed her son to dispose of the murder weapon and then drove him from the scene of the crime. 85 The fact is that [NAME] is [NAME]'s mother. They no doubt had a strained relationship. But it was to her that he turned when needing help and advice. Rather than counselling him to stay away from the dispute, she encouraged, and materially assisted him, to go to the scene and engage in an altercation with [NAME], knowing that her son was armed with a weapon capable of inflicting serious physical injury. She then helped him to try and cover up what occurred by disposing of the murder weapon and driving him from the scene of the crime. 86 On any view, this was extensive encouragement and assistance given by [NAME] to her son. I regard the objective criminality of her participation in this offence as an aider and abetter as falling at the upper end of the mid‑range of seriousness of objective criminality."

1. In relation to [NAME] made the following assessment: "87 [NAME] took a lesser role in what was occurring. He was not directly related to [NAME] except by his marriage to [NAME]. He certainly went along in the motor vehicle. The weapon with which he was armed was unlikely, of itself, to cause any serious physical injury. Although I am satisfied that it must have been obvious to [NAME], at the time they arrived at the scene of the confrontation, that [NAME] intended to inflict really serious physical injury on [NAME] from the fact that he carried the mattock handle from the car and confronted [NAME], I am not satisfied that [NAME] played nearly as significant a role as his wife did by way of encouraging or assisting [NAME]. There is no evidence that he said anything to [NAME] to encourage him. No doubt, his close presence whilst armed with a fishing rod, and his use of the fishing rod on at least four separate occasions to hit [NAME], encouraged [NAME] to keep going with his assault. 88 There is no suggestion that [NAME], other than by disposing of his own implement, the fishing rod, and his hat, did anything to assist [NAME] after the event with the disposal of his weapon and other material. 89 In my assessment, the criminality of [NAME] is lower than that of [NAME], and is at the lower end of the mid-range of seriousness of objective criminality."

1. In relation to their subjective cases, [NAME] noted that the applicant was aged 51 at the time of sentence and was 49 when the offence occurred. She was educated to the age of 16 and then left school to work. She had two sisters and a brother who had died. Her mother was alive. She married at a relatively young age and had two children. As well as [NAME], she had a daughter. She had been married on a number of occasions, most recently to [NAME]. There was no evidence of anything exceptional in her upbringing.

2. In 1991 she was involved in a serious motor vehicle accident of which the physical consequences were that she had been largely unable to work since then. There was no suggestion that as an adult she had any drug or alcohol issues nor that she suffered from any diagnosable mental health condition.

3. The subjective circumstances of [NAME] were that he was 41 at the time of the offence and had almost turned 44 at the time of sentence. He was the youngest of five children and had three older brothers and one older sister. His parents separated when he was young. He was educated to school certificate level and left when he was aged 16. He had lived in Coffs Harbour for many years and had generally been employed throughout the period. He had been a heavy drinker over time and was diagnosed not long before the sentence proceedings as having a Substance Use Disorder. There was no psychiatric diagnosis or evidence of a personality disorder. 4. [NAME] made a finding of special circumstances in relation to both the applicant and [NAME].

5. In relation to the sentences imposed, [NAME] noted the seriousness of the offence of murder and the sanctity of human life. [NAME] emphasised the importance of general deterrence when sentencing for such an offence. 6. [NAME] particularly took into account that the conflict between [NAME] and [NAME] was minor. It was transient. It required the exercise of mature judgment. What was called for in those circumstances was not to take [NAME] to the scene while he, the applicant and [NAME] were armed but rather to stay well away from the scene and to enable time to pass and tempers to cool. [NAME] noted that the applicant was not young and immature like her son. She was the one person who could, by her mature conduct, have discouraged [NAME] from engaging in the violent assault. In contrast, she encouraged and assisted him in his criminal conduct. She then went to some lengths, including lying to the police to cover up the true extent of the crime, and particularly her involvement in it.

7. In the case of [NAME] was satisfied that his conduct reflected misplaced loyalty to the applicant and a lack of judgment on his part. [NAME] also noted that he knew what was likely to happen when he arrived at the scene, that he went along with it and participated in it. He also tried to cover up his involvement. THE APPEAL Ground 1 – The sentencing judge erred in his assessment of the applicant's objective criminality resulting in a sentence that was manifestly excessive.

1. The applicant submitted that [NAME]'s finding that her objective criminality fell at the upper end of mid-range placed her criminality at too high a level. The applicant submitted that [NAME] was also in error in finding that there was a level of preplanning that amounted to a matter of significant aggravation of the offence.

2. The applicant submitted that she did not start the conflict, even though she did nothing to stop it. She only drove [NAME] a short distance to [NAME]'s residence, being a trip of some eight minutes. She submitted that the assistance which she gave to [NAME] was not "extensive" consisting of some encouragement, driving a brief distance to [NAME]'s home and then driving away again.

3. The applicant accepted that the finding as to her objective criminality was a discretionary one and thus the principles in House v R [1936] HCA 40; 55 CLR 499 applied. In support of this ground, the applicant relied upon [NAME]'s finding of "pre-planning" as a significant aggravating factor pursuant to s 21A(2)(n) of the Sentencing Procedure Act. While the applicant accepted that there was some planning in the offence, this was not "planned or organised criminal activity" as meant by the section.

4. On that issue, the applicant relied upon the analysis of [NAME] (with whom Simpson and Buddin JJ agreed) in Fahs v Regina [2007] NSWCCA 26 where [NAME] said: "21 The aggravating factor under s 21A(2)(n) is that "the offence was part of a planned or organised criminal activity". The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a "level of planning in the offences" as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision."

1. The applicant submitted that the finding of "pre-planning" was a major factor in the assessment by the sentencing judge that the applicant's criminality was at the upper end of mid-range. The applicant submitted that it was the major point of differentiation relied upon by [NAME] to impose different sentences between her and [NAME]. Consideration 1. The characterisation of the objective seriousness of an offence is classically within the role of the sentencing judge and as such is a determination with which this Court will be slow to intervene (Mulato v R [2006] NSWCCA 282; R v KB; R v JL; R v [NAME] [2011] NSWCCA 190 at [51]).

2. The applicant was sentenced on the basis that she aided and abetted [NAME] in the murder of [NAME]. The basis for liability of secondary participants was set out in Giorgianni v The Queen [1985] HCA 29;156 CLR 473 by Wilson, Deane and Dawson JJ (at [19]): "19 … Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence." The actions that form the assistance or encouragement are central to the assessment of culpability on sentence (R v Swan [2006] NSWCCA 47 at [72]).

1. There was ample evidence upon which the sentencing judge could base the conclusion that the objective criminality of the applicant's actions was at the upper end of the mid-range of seriousness. What is apparent from the sequence of events is that from the time she learned of the conflict between [NAME] and [NAME], right up until the group fled from the scene of the offence, the applicant actively encouraged and assisted [NAME] to confront [NAME] despite knowing that her son was armed, was an extremely violent man and that he intended to assault [NAME].

2. Fundamental to the applicant's offending was the relationship between her and [NAME]. He was her son and obviously looked to her in these circumstances for advice. The importance of the part played by her was succinctly summarised by [NAME] when he noted that the dispute was minor, was transient and it required the exercise of mature judgment. What was called for was not to take her son to [NAME]'s home while he and she were armed but to stay well away. As [NAME] said: "103 … She was not young and immature like her son, [NAME], was. She was the one person who could, by her mature conduct, have discouraged [NAME] from engaging in this violent assault. On the contrary, she encouraged and assisted him in his conduct. …"

1. It follows that this aspect of the first ground of appeal has not been made out.

2. Where the applicant is on stronger ground is in relation to [NAME]'s finding that the level of planning was "an aggravating factor of real weight" (ROS [67]).

3. The [NAME] sought to explain this finding by reference to what was said by Basten JA ([NAME] JJ agreeing) in [NAME] v R [2016] NSWCCA 185. There, in relation to the same facts, the sentencing judge found that the level of planning was "an aggravating factor". Basten JA while finding error noted that the error was "immaterial". [NAME] said: "75 The submissions for the applicant should be accepted in so far as the sentencing judge was in error in identifying the aggravating factor by reference to s 21A(2)(n). However, as also appears from RL, planning may nevertheless constitute a factor affecting the relative seriousness of the offence, for the purposes of s 21A(1)(c). Whether an offence is "planned" will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation. Thus, although the judge was wrong to identify the statutory basis for his finding of aggravation, what he took into account were the matters set out in the passage quoted above. There was no error in treating those matters as aggravating; the incorrect statutory classification cannot be said to have affected the sentence imposed. The error was immaterial." (The reference to RL is a reference to RL v R [2015] NSWCCA 106 at [36]). 1. [NAME] restricted his finding to the level of planning being "an aggravating factor" the analysis of Basten JA would produce the same result in this appeal as occurred in the sentence appeal by [NAME]. In this case, however, [NAME] went further and found that the level of planning was "an aggravating factor of real weight". In those circumstances it cannot be said that the only error is the statutory classification and that the error was immaterial. Clearly, [NAME] took it into account as a significant matter. On this issue, error has been made out in relation to Ground of Appeal 1. Ground 2 – The applicant has a justifiable sense of grievance with regard to her sentence when compared with the sentence imposed on [NAME].

1. The applicant submitted that when taken as a whole, although she and [NAME] did different things at different times, given that they were sentenced as aiders and abetters of [NAME], there was no relevant distinction between them in terms of objective criminality. The applicant submitted that the real question is whether, taken as a whole, the differences between their offending was such as to warrant a difference in the ultimate sentence.

2. The applicant submitted that the observation by [NAME] of [NAME] entering the vehicle carrying the mattock handle gave him the same level of notice of an impending confrontation as she had. The applicant submitted that even though their actions at [NAME]'s house were different, they were of the same kind and did not involve any additional criminality. The applicant submitted that at the time [NAME] intervened and attacked [NAME] had already been significantly disabled by the blows struck by [NAME].

3. The applicant relied on the finding by the sentencing judge that there was no evidence of contrition or remorse on the part of [NAME]. The applicant submitted that too much weight had been given by the sentencing judge to the relationship between her and [NAME] which did not justify the disparity in their sentences. Consideration 1. The focus of the applicant's submissions under this ground was on a comparison between her actions and those of [NAME]. Fundamental to the ground of appeal, is the proposition that although their actions were different, the level of criminality was generally the same and that accordingly, the difference in sentences was not justified. This fails to properly acknowledge the relationship between the applicant and [NAME] and the inflammatory role played by the applicant in the offending which was more significant than her actions.

2. From the moment of her involvement in the dispute between [NAME] and [NAME], the applicant sought to escalate the level of conflict. Her text messages could only be regarded as provocative. While we do not know the content of the discussions between the applicant and [NAME] before she decided to drive him to [NAME]'s residence, some parts can be safely inferred. From the fact that she armed herself before leaving home and was apparently not surprised when she observed [NAME] to be armed, they had already formed the intention to inflict violence upon [NAME]. Her presence and encouragement, both by word and deed, served to "maintain the rage" so far as [NAME]'s feelings towards [NAME] were concerned. By contrast, [NAME] was there as a result of a "misplaced sense of loyalty" to the applicant. Other than his presence, there was no other encouragement by him of the violent confrontation which subsequently eventuated.

3. One of the most significant differences between the conduct of the applicant and [NAME] can be seen in the early stages of the confrontation. Instead of trying to defuse the situation, as she asserted in her evidence, it was the applicant who commenced shouting at [NAME] and was "in his face". Any chance of a peaceful outcome was almost certainly lost at that point in time.

4.

Accordingly, there was a clear distinction between the part played by the applicant and that of [NAME] in the death of [NAME]. This was appropriately reflected in the different sentences imposed by [NAME] on them. This ground of appeal has not been made out. Resentence 1. Because error has been disclosed, as set out in the discussion of Ground of Appeal 1, consideration of the application of s 6(3) of the Criminal Appeal Act 1912 is relevant. That section relevantly provides: "6 … (3) On an appeal under s 5(1) against a sentence the court if it is of opinion that some other sentence whether more or less severe is warranted in law should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal."

1. In considering the section, it is necessary to take into account events which have occurred since the sentence was imposed. In that regard, the Court had before it an affidavit of the applicant, dated 22 November 2016. That affidavit indicated that apart from the inevitable hardship of imprisonment, the applicant was continuing to make progress in her rehabilitation as was noted by the sentencing judge in his remarks (see [41] hereof). That is a matter which I have taken into account.

2. None of the factual findings made by [NAME] (except in relation to the issue of planning) have been challenged in the appeal. [NAME]'s findings, therefore, can be taken into account by me when forming my own view as to the appropriate sentence to be imposed on the applicant.

3. I have already set out in some detail my assessment of the objective seriousness of the applicant's offending in the discussion of both grounds of appeal. I have concluded on the basis of that analysis that the objective criminality of the applicant arising from her participation in this offence as an aider and abetter of [NAME] is above the mid-range of objective seriousness. I consider that the conduct of the applicant in the early stages of the confrontation operated as a catalyst for the outbreak of violence which subsequently occurred. It was the applicant who sought to escalate the conflict by not only provoking [NAME], but by also encouraging [NAME] to engage in a physical confrontation with him.

4. It follows that in the exercise of my independent discretion I would have imposed a longer sentence than that imposed by [NAME]. In those circumstances it is not necessary for me to specify that sentence. The effect of my assessment is that no lesser sentence than that imposed by [NAME] is warranted at law and accordingly, despite the error which has been identified, the application for leave to appeal against sentence should be dismissed.

5. The orders which I propose are:

1. Leave to appeal against sentence be granted.

2. The appeal be dismissed. 1. [NAME]: I agree with the orders proposed by the Chief Judge and generally with [NAME]'s reasons but, with respect, take a somewhat different approach to the significance of the learned sentencing Judge's reference to s 21A(2)(n).

2. Section 21A does not change the common law of sentencing. The apparent assumption of the resuming clause of sub s 21A(1) that the matters enumerated in sub ss 21A(2) and (3) are not already "permitted or required to be taken into account by the court" when sentencing an [NAME], is mistaken. Those subsections list matters that have always been regarded as relevant to the assessment of the seriousness of a criminal offence. To take the so-called "aggravating" features, in some cases, they are part of the offence itself, as for example para 21A(2)(b) for an offence involving, whether as an element or not, the use or threatened use of violence. The actual nature of the threat and the actual extent of violence has always been relevant to the assessment of seriousness. (Of course, there should be no double punishment: Pearce v R [1998] HCA 57; 194 CLR 610 – decided, by the way, under the common law.) It is self-evident that merely listing the factor does not make the threat worse or the violence more serious than the actual threat or actual violence warrants. The degree to which it renders the criminality more or less serious is unaffected by the happenstance that the matter is enumerated. To deal with this unnecessary complication, sentencing judges have had to undertake (amongst other pointless exercises) the task of identifying whether, say, the violence was no more than inherently part of the relevant element of the offence and only apply the "aggravating" characterisation to the excess, when all that is necessary or desirable is to assess the seriousness of the offence by reference to the extent of violence actually used or threatened and be done with it.

3. Subsections 21A(2) and (3) have no utility. This is true of each of the listed factors, whether described as "aggravating" or "mitigating". Considering paragraph 21A(3)(a) for example, it is obvious that the infliction of slight injury or damage makes the relevant offence less serious than it would be had the injury or damage been considerable, but it is a solecism to describe insubstantial injury or damage as "mitigating". (I would accept that the good character of an [NAME], say, or good prospects of rehabilitation could aptly be termed "mitigating" but, again, this is the common law.) Offences involving injury or damage do not imply any particular degree of outcome. (That some offences impose a higher maximum sentence for particular intentions or specified results does not qualify this point.) It is trite that the assessment of seriousness depends, inter alia, on the extent of injury or damage inflicted. The courts managed to appreciate this point without statutory assistance a long time before the enactment of the Sentencing Procedure Act.

4. As discussed in the NSW Law Reform Commission's report entitled 'Review of Sentencing Laws' dated December 1996 – "14.15 The Commission does not support the reduction to statutory form of common law principles relating to sentencing for the following reasons: It is likely to stultify development of the law. Consolidation can easily be treated as codification, which has inherent difficulties. Sentencing should remain an individualised exercise of judicial discretion in "making the punishment fit the crime, and the circumstances of the [NAME], as nearly as may be". Inevitably it would be constrained by literal application of the words and purposes of the statute, thus compromising the desirable flexibility and evolutionary nature of the common law discretion and its ability to adapt to changing societal values. The common law of sentencing is not generally in need of restatement. Even if it were, an attempt to "reform" it is likely to fail. We are not convinced that recent legislative attempts in other Australian jurisdictions add anything to the common law. An exhaustive list of factors which may be relevant to sentencing for offences and of offenders cannot be drawn up, and any statutory list therefore must permit resort to "any other matter". Of itself, listing can create dangers, for example in relation to whether a matter must Sentencing be taken into account in aggravation or in mitigation, or what to do when principles are in conflict, or what conclusion is to be drawn from the order in which factors are listed, or the omission of a factor from the list. In practice, statutory listing is likely to make sentencing a more time consuming exercise without clear gain. Counterproductively, it may increase the grounds on which the sentence may be appealed, or encourage judicial officers to comply by using a formula such as "I have considered all the relevant matters". 14.16 Our conclusion is that reducing the common law to statutory form serves no obvious purpose in terms of law reform, and runs the real risk if obfuscating the law. Nor does the Commission consider that the present law contains defects that warrant complete rationalisation and consolidation or codification. Where difficulties exist, the Commission considers that they are better resolved by the development of the common law, free from the constraints of statute." (Footnotes omitted)

1. The last dot point has been overwhelmingly demonstrated.

2. In the present appeal, the applicant submits that the learned sentencing Judge erred in describing the offence as being "part of a planned or organised criminal activity" within s 21A(2)(n). The description, in ordinary parlance, was accurate. That [NAME] referred to s 21A(2)(n) - which concerns cases where, to use lay language, the crime is part of the [NAME]'s business - is contended to be appealable error. [NAME] did not find that the offence was part of the applicant's business, and intended only to convey the lay sense of the phrase, it follows that the seriousness of the offence was not increased in [NAME]'s calculus by, supposing (with respect, mistakenly) that s 21A(2)(n) applied.

Accordingly, the subsection did not affect [NAME]'s assessment of objective seriousness and the reference to it was a technical and irrelevant error of no consequence. This conclusion, with respect, is not affected by the fact that [NAME] said the nature and extent of the planning and organisation – carefully detailed in the reasons – was "an aggravating factor of real weight". [NAME] not mentioned s 21A(2)(n), the observation would have been plainly correct. In my respectful view, the meaning intended (and conveyed) by [NAME] was not changed by the statutory reference and it was not given any greater significance than was warranted. [NAME] simply meant, as I apprehend it, that the level of premeditation and planning tended to significantly increase the objective seriousness of the offence. This was plainly correct.

3. Accordingly (as in RL v R [2015] NSWCCA 106), the reference to s 21A(2)(n) was inconsequential and this aspect of the argument in support of the ground of appeal should be rejected. 4. [NAME]: I agree with the reasons of Hoeben CJ at [NAME] for upholding Ground 1 but rejecting Ground 2.

5. As to resentencing, reasonable minds may differ as to whether the objective seriousness of the offence was above mid-range or, as the primary judge found, "at the upper end of the mid-range". In my view, being mindful of the two statutory guideposts of a maximum penalty of life imprisonment and standard non-parole period of 20 years, even if the finding was simply "in the mid-range" it could not be said that a lesser sentence than 22 years with a non-parole period of 15 years was warranted.

6. I agree with the orders proposed by Hoeben CJ at [NAME]. ******

Amendments 20 December 2016 - Correction to cover sheet in relation to appearances. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2016