R v HEARNE [2001] NSWCCA 37

Reported Decision : 124 A Crim R 451

New South Wales Court of Criminal Appeal

CITATION : R v HEARNE [2001] NSWCCA 37 FILE NUMBER(S) : CCA 60316 OF 1999 HEARING DATE(S) : 24 March 2000 JUDGMENT DATE : 28 February 2001

PARTIES : Regina Murray Walter HEARNE JUDGMENT OF : Powell JA at 1; Hulme J at 1; Dowd J at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70045/98 LOWER COURT JUDICIAL Wood CJ at CL OFFICER :

COUNSEL : Crown: M Grogan Appellant: MC Ramage QC SOLICITORS : Crown: SE O'Connor Appellant: Jeffreys & Associates

DECISION : The appeal is allowed; The sentence imposed on the Applicant on 4 June 1999 in respect of the offence of murder is quashed; In lieu thereof the Applicant is sentenced in respect of the offence of murder to imprisonment for a term of 18 years commencing on 3 March 2001 such term to include a non-parole period of 13 years and to be concurrent from that date with the sentence imposed on 4 June 1999 for malicious wounding; The Court specifies as the date upon which the Applicant shall be eligible for release on parole, 3 March 2014

- 27 -IN THE COURT OF CRIMINAL APPEAL No 60316 of 1999 POWELL JA HULME J DOWD J Wednesday, 28 February 2001 REGINA -v- Murray Walter HEARNE JUDGMENT 1 THE COURT: On 4 June 1999, this Applicant for leave to appeal was sentenced by Wood CJ at CL in respect of 2 charges:- (i) the murder on 28 February 1998 of Constable Peter Forsyth, and, (ii) the malicious wounding of Constable Jason Semple on 27 February 1998, with intent to do him grievous bodily harm. 2 The maximum penalties prescribed for these offences are, respectively, life imprisonment and imprisonment for 25 years. 3 The sentences imposed were, on the first charge, a minimum term of penal servitude for 20 years commencing on 3 March 1998, with an additional term of 7 years and, on the second, a fixed concurrent term of 6 years. These sentences were formulated to take account of the totality of the Applicant's criminality, Wood CJ at CL having expressed the view that, considered in isolation, individual sentences "involving a minimum term of the order of 18 years, with an additional term of 5 years", and "a minimum term in the order of 6 years, with an additional term of 2 years" would have been appropriate. His Honour also observed that a minimum term less than that imposed would not properly reflect the objective and subjective criminality of the Applicant. 4 It is contended on behalf of the Applicant that the sentences were excessive. In support of that proposition, it was submitted that:- (i) the sentence was manifestly excessive and outside the appropriate range of sentences for the Applicant's criminality, and (ii) the sentencing judge failed to given any or adequate weight to the following matters - (a) that the Applicant effectively surrendered himself to police, (b) that the Applicant pleaded guilty, (c) the Applicant's contrition and remorse, (d) the Applicant's prior (relatively) good character, and (e) that the Applicant's intent was to inflict grievous bodily harm (rather than to kill) (iii) Wood CJ at CL erred in his findings and the significance he attached to them in respect of - (a) the fact that the victims were police officers, (b) the Applicant's carrying and use of a knife, (c) the reason for the Applicant's use of the knife (c) the lack of premeditation (d) the Applicant's youth, (e) the rejection or ignoring of evidence of 3 witnesses. 5 It is convenient to refer firstly to the specific matters referred to in paragraphs (ii) and (iii).