New South Wales Court of Criminal Appeal CITATION: Carruthers v R [2007] NSWCCA 276 HEARING DATE(S): 20 April 2007 JUDGMENT DATE: 15 November 2007 JUDGMENT OF: Mason P at 1; Hidden J at 2; Rothman J at 3 (i) Leave to appeal be granted; DECISION: (ii) The sentence imposed on Peter John Carruthers on 21 October 2005, for the murder of Damien Joel Meredith, be quashed and in lieu thereof the said Peter John Carruthers be sentenced to a non-parole period of 15 years' imprisonment commencing 17 May 2004 and concluding on 16 May 2019 and a remainder of term of a further five years concluding on 16 May 2024. CATCHWORDS: CRIMINAL LAW – Appeal – Sentencing – Murder of witness – Interference with administration of justice – Lack of sufficient disparity with co-offender – Insufficient regard to the value of assistance to the authorities and effect of assistance on accused – Appeal allowed – Appellant re-sentenced. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 78 ALJR 616 Markarian v The Queen (2005) 79 ALJR 1048 McKenna v Regina [2007] NSWCCA 113 CASES CITED: Postiglione v The Queen (1997) 189 CLR 295 R v M [2005] NSWCCA 224 R v Sukkar [2006] NSWCCA 92 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Tiddy [1969] SASR 575 York v The Queen (2005) 79 ALJR 1919 PARTIES: Peter John Carruthers (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2005/2332 (formerly 2006/2734) COUNSEL: T. Game SC (Applicant) L. Lampratti SC / J. Dwyer (Crown) SOLICITORS: S. Beckett (LAC) S. Kavanagh (ODPP) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2005/320 LOWER COURT JUDICIAL OFFICER: Patten AJ LOWER COURT DATE OF DECISION: 21/10/05 IN THE COURT OF CRIMINAL APPEAL 2005/2332 (formerly 2006/2734) MASON P HIDDEN J ROTHMAN J 15 NOVEMBER 2007 Peter John CARRUTHERS v REGINA Judgment 1 MASON P: I agree with Rothman J. 2 HIDDEN J: I agree with Rothman J that the learned sentencing juge fell into error in his assessment of the combined discount for the applicant's early plea of guilty and his assistance to the authorities. Further, what the sentencing judge had to say about the applicant's remorse and prospects of rehabilitation conveys to me that inadequate weight was given to those factors. This court should intervene. I agree with Rothman J's approach to re-sentence and with the orders which his Honour proposes. 3 ROTHMAN J: Peter John Carruthers, together with Daniel Davies, murdered Damien Meredith. Mr Carruthers, after discussing arrangements to get Mr Meredith to attend a meeting with Mr Davies and him, met Mr Meredith at a bus stop, then drove him to a pre-arranged meeting place, where Mr Davies shot Mr Meredith. The shot did not immediately cause death. Mr Carruthers joined Mr Davies in causing the death of Mr Meredith by running over his body with his car and perhaps striking him with a metal bar or pole. 4 Mr Carruthers was charged with the murder of Mr Meredith on 28 September 2002 and at a later time pleaded guilty. On 21 October 2005, Mr Carruthers was sentenced to imprisonment for a non-parole period of 18 years and nine months, with a remainder of term of six years and three months, bringing the total sentence to 25 years. Mr Carruthers seeks leave to appeal his sentence on the grounds that: (a) On the basis of new evidence, there was an undervaluing of the assistance provided by Mr Carruthers to authorities; (b) There was an error in assessing the combined discount for the utilitarian value of the plea of guilty, contrition and the assistance offered to the authorities by the applicant at 30%; (c) No or insufficient regard was paid to the timing of Mr Carruthers' plea or his indication of such a plea; (d) Failure by the sentencing judge to reduce the sentence on the basis of: (i) The finding that it was unlikely that Mr Carruthers would reoffend; (ii) The finding that there were reasonable prospects of rehabilitation; and (iii) The genuine remorse shown by Mr Carruthers; (e) There is a justifiable sense of grievance based upon the disparity in sentence imposed on Mr Carruthers compared to that imposed on Mr Davies; (f) The sentence imposed on Mr Carruthers is manifestly excessive. 5 The above grounds of appeal overlap with each other, at least to some degree. Before dealing with them, it is necessary to outline more fully the circumstances of the offence and the surrounding facts upon which Mr Carruthers relies. Mr Carruthers' Role in the Murder 6 The sentencing judge was provided with agreed facts but was required to make some findings. There is some history, which must be recited for the purpose of understanding the motive for the murder. Mr Davies lived with his partner Ms Megan Perry. He sold drugs. On 26 December 2001 Mr Meredith attended at Mr Davies' house to obtain drugs. Mr Davies and Mr Meredith argued, as a result of which Mr Davies shot Mr Meredith once in the area of his right toe with a .22 calibre rifle. 7 Omitting currently irrelevant details, Mr Davies was charged with the offence of maliciously inflicting grievous bodily harm, the proceedings for which, after committal, were listed for trial in Newcastle District Court on 30 September 2002. Mr Meredith, who was intended to be a witness in the proceedings, did not attend. Enquiries revealed that his mother had last seen him two days earlier on 28 September 2002. Mr Meredith had received a telephone call, on his mobile, and left the house about 6 pm on that day. 8 The telephone call had come from Mr Carruthers. Mr Carruthers telephoned Mr Meredith from a public telephone box approximately 20 metres from the home of Mr Davies. Mr Carruthers told Mr Meredith that he (Mr Carruthers) had been referred to Mr Meredith by a mutual acquaintance and that he needed assistance to organise the purchase of drugs. 9 Mr Carruthers arranged for Mr Meredith to catch a bus to Swansea, where Mr Carruthers collected him in a car. Mr Meredith was to direct Mr Carruthers to a place where the drugs could be purchased. This arrangement was effected. 10 At the same time that Mr Carruthers left the house to collect Mr Meredith, Mr Davies, with his father, drove to the southern end of the Old Pacific Highway at Swansea South. At this isolated area, surrounded by a thick bush and not open to through traffic, Mr Davies, wearing a balaclava and armed with a .22 calibre "sawn off" rifle, waited for his prey; all part of the plan for the murder. 11 His father then travelled to the bus stop to check that Mr Carruthers did as had been pre-arranged. Mr Carruthers was aware that Mr Davies' father was at the bus stop. Mr Meredith met Mr Carruthers at the bus stop, and occupied the front passenger seat of the blue laser Mr Carruthers was driving. 12 Mr Carruthers then drove Mr Meredith to the bushland at Swansea South where Mr Davies was waiting. After they arrived, Mr Davies emerged from the brush, where he had been concealed; there was a confrontation; following which Mr Davies shot Mr Meredith a number of times with the rifle. This did not immediately result in his death. Mr Carruthers joined Mr Davies in ensuring that Mr Meredith died by running over his body with the car and perhaps striking him with a metal bar or pole. 13 The sentencing judge found the existence of the facts as stated above and also determined that the Crown could not prove beyond a reasonable doubt (such a burden being required) that Mr Carruthers was aware that he was taking Mr Meredith to his death. In other words, his Honour accepted that Mr Carruthers was to be sentenced on the basis that he had no foreknowledge that Mr Davies would be armed with a gun when he brought Mr Meredith to the bushland where he was killed. Mr Carruthers testified, at the sentence hearing, that, if he had known that it was intended that Mr Meredith be killed, he would not have gone to the scene with him and would not have become involved. Nevertheless, once Mr Meredith was shot he voluntarily participated in that which eventuated. His motivation, it appeared to the sentencing judge, was in part simply to assist his drug supplier and in part driven by a fear of Mr Davies. It was also, it seems, a motive, after the commencement of the killing, to ensure that Mr Meredith did not live to inform the authorities. 14 As is obvious from the sentencing proceedings that followed, a rift developed between Mr Carruthers and Mr Davies. Following other events Mr Carruthers gave assistance to the police that implicated Mr Davies in a number of other offences. Mr Davies took the view that he could not trust Mr Carruthers any longer and returned to the location where Mr Meredith had been buried, exhumed the remains of Mr Meredith and dumped the body (or its remains) in the Awaba Waste Management dump. In that activity his father and Ms Perry assisted him. 15 On 17 May 2004, police arrested Mr Carruthers and he was charged with murder. He asked to be interviewed and, after some delay, on 31 May 2004 Mr Carruthers participated in an ERISP. He initially denied taking an active part in the killing, but on a later date admitted that he had telephoned Mr Meredith and driven him to the location where he was killed. 16 From approximately 9 February 2005, Mr Carruthers, through his legal representatives, indicated that there would be a plea of guilty. There was a paper committal procedure in the Local Court in Newcastle and police obtained an "induced" statement from Mr Carruthers on 20 May 2005. The plea of guilty was formally entered in the Supreme Court on 5 August 2005. 17 I turn then to the grounds of appeal with which I deal otherwise than in the order agitated in the notice of appeal after setting out the well-established principles to be applied. Principles on Appeal 18 The Court of Criminal Appeal exercises jurisdiction under the Criminal Appeal Act 1912 (NSW), which, relevantly, entitles the Court to correct error. Absent error in a sentence, either identifiable or manifest, this Court will not interfere with the exercise of discretion reposed in the sentencing judge: House v The King (1936) 55 CLR 499. 19 The task of sentencing is a difficult one involving the reconciliation of sometimes conflicting goals including retribution, punishment, general and specific deterrence, protection of the community, rehabilitation, denunciation and accountability: see section 3A Crimes (Sentencing Procedure) Act 1999 (NSW). Recitation of those goals immediately displays the tension between them. Moreover, sentencing is not a mathematical exercise (Markarian v The Queen (2005) 79 ALJR 1048); different sentencing judges will arrive at different results, within an appropriate range, that are nevertheless correct and so long as the result is consonant with consistency of approach and accords with the statutory regime, as much flexibility as possible must be allowed: Markarian, supra, at [27]; Johnson v The Queen (2004) 78 ALJR 616 at 618 [5]. 20 Where, as here, reliance is placed upon the disparity of sentence between co-offenders particular principles apply. Those principles are well established. The principles that apply to parity in sentencing are a manifestation of the application of the principles of equal justice. They require that like should be treated alike and, where there are relevant differences, due allowance should be made for such differences: Postiglione v The Queen (1997) 189 CLR 295 at 301 (per Dawson and Gaudron JJ); R v Tiddy [1969] SASR 575 at 577. 21 Discrepancy is not, itself, sufficient to warrant intervention by an appellate court, unless, viewed objectively, the discrepancy is unjustifiable. The comparison is made between the objectively determined culpability of the offenders in their respective roles in the offence, together with the differences in the subjective factors that are applied to each offender. Where there are unjustifiable differences, an appellate court will not intervene to reduce a sentence to a level that would be inappropriate for the offence in question. The fixing of an inappropriate sentence, for the sake of parity, may bring the administration of justice into disrepute as much or more than retaining the disparity would: McKenna v Regina [2007] NSWCCA 113 at [48]-[55]. Remorse, Rehabilitation and Re-Offending 22 The sentencing judge remarked: "He is, of course, facing a lengthy term of imprisonment, but in the circumstances, including evidence to which I will return, I think it reasonable to conclude that he is unlikely to re-offend in a way which now brings him before the court, and that he has reasonable prospects of rehabilitation and that he shows genuine remorse for the offence. None of these matters, however, would lead me to reduce the sentence otherwise appropriate". (See: Remarks on Sentence, p 5). 23 Mr Carruthers submits that the latter quoted excerpt is contrary to established sentencing principles and, in particular, contrary to section 21A (3) (g), (h) and (i) of the Crimes (Sentencing Procedure) Act. 24 Subsection 3 of section 21A of the Act requires that remorse, the prospects of rehabilitation, and the fact that the offender is unlikely to re-offend be taken into account in determining the appropriate sentence for any particular offence. The subsection does not require that, having taken those factors into account, the sentence must be reduced below that which is considered to be otherwise appropriate. 25 Generally, such findings would lead to a reduction in sentence. But a sentencing judge would not be in error if, having arrived at a tentative view as to an appropriate sentence at a level below which the sentence would be inappropriate, in the exercise of the judge's discretion, the judge were to determine not to lower it further. Ultimately, therefore, the issue is truly whether these factors should have been used to mitigate the sentence. Otherwise expressed, Mr Carruthers must establish that a refusal to lower the sentence further as a result of these findings has resulted in a miscarriage of the discretion exercised. In turn, such a question depends or is related to a general determination of the appropriateness of the sentence imposed. New Evidence of Assistance, Combined Discount and Timing of Applicant's Plea 26 These grounds of appeal are interwoven. As has been already stated, on 9 February 2005 Mr Carruthers indicated that he would plead guilty. The sentencing judge fixed the allowance for the plea of guilty on the basis that the plea was not entered until after the committal proceedings. The committal proceedings were concluded "on the papers" and, it is accepted by the Crown, there was an indication of an intention to plead guilty well before the committal proceedings. The terms of section 22 (1) (b) of the Crimes (Sentencing Procedure) Act requires account to be taken of the timing of the guilty plea or the timing of an indication of an intention to plead guilty. In the circumstances before the sentencing court, it was more appropriate that regard should be had, as conceded by the Crown, to the date upon which the first indication was given, i.e. 9 February 2005, a date well before the committal proceedings. 27 The range of discount for the utilitarian value of the plea of guilty is between 10% and 25%: see section 22 of the Crimes (Sentencing Procedure) Act and R v Thomson & Houlton (2000) 49 NSWLR 383. An indication of guilty plea made at a relatively early stage of proceedings, as was done here, would ordinarily require a discount at the higher end of the range available. It is difficult to imagine, given that the plea was not made at the very earliest but nonetheless at a very early stage, that a discount of less than 20% would be appropriate. 28 Given that something more than 20% is available and appropriate for a discount to the plea of guilty, the discount of 30%, given in this matter, for both the plea of guilty and the assistance to authorities, seems inadequate. There is no fixed tariff for the reduction that should be given for assistance. The discount has been variously stated. This Court has stated that only in exceptional circumstances should it be more than 40% (R v Sukkar [2006] NSWCCA 92) and has otherwise, while accepting that in exceptional cases the discount has been in excess of 50%, suggested that the discount customarily has ranged between 20% and 50% of the sentence that would otherwise have been imposed: R v M [2005] NSWCCA 224. In the latter case, the Court was referring to a combined discount for assistance and a plea. 29 The purpose of the discount for assistance was most succinctly stated by the High Court in York v The Queen (2005) 79 ALJR 1919. In that case, Gleeson CJ said: "It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender's safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released." ( York v The Queen at [3], per Gleeson CJ.) 30 Mr Carruthers submits that new evidence is available which discloses, over and above that which has already been discussed, that error has occurred. Because of the foregoing, it is unnecessary to determine whether such evidence could be adduced in order to show error. Error having been otherwise demonstrated, the new evidence is available to be used in any re-sentencing undertaken by this Court. 31 The new additional evidence adduced by Mr Carruthers, or on his behalf, show the reliability and extent of the assistance given by Mr Carruthers to the authorities. The sentencing judge was "unable to reach a conclusion as to the truthfulness, completeness, and reliability of the material provided to the police" (ROS p6). He was not, at the time of passing sentence, in a position to determine finally the degree to which the offer of assistance, if effected, actually assisted in the investigation and conclusion of the offences. 32 During the trial for Mr Davies, the sentencing judge heard the evidence of Mr Carruthers given in accordance with his undertaking. Unlike the opinion expressed by the sentencing judge about Mr Carruthers during his sentencing proceedings, the same judge, having heard Mr Carruthers' evidence in Mr Davies' trial, remarked, in sentencing Mr Davies, that Mr Carruthers should be accepted, beyond reasonable doubt, as "reliable" and, while the Crown case did not depend entirely upon Mr Carruthers' evidence, without it the full extent of Mr Davies' criminal conduct would have remained unknown. It was substantially on the basis of the evidence of Mr Carruthers that Mr Davies was convicted. Mr Carruthers was also required, and willing, to give evidence against two other persons who, after the conviction of Mr Davies, pleaded guilty. It is unlikely that any of those three would have been convicted, or convicted as easily, without the assistance of Mr Carruthers who was the only eyewitness to the murder. 33 Re-sentencing being required, the Court is entitled, if not required, to take account of the actual assistance given and its proven reliability. 34 In the current circumstances, Mr Carruthers has given assistance to authorities in circumstances where the authorities and Mr Carruthers know the person involved to be prepared to kill those who put themselves in that same position. Further, the evidence before the sentencing judge (and before this Court) was that Mr Carruthers is incarcerated under conditions that require significant restrictions and protection. In such circumstances, a combined discount of less than 35% is inappropriate. Disparity of Sentence with Co-Offender 35 The sentencing judge, having assessed objective culpability, started with a head sentence of 35 years' imprisonment. The discount (30%) for the plea of guilty and assistance authorities was then applied to arrive at the sentence imposed. Not having found special circumstances, the sentencing judge fixed a non-parole period that is three quarters of that sentence. 36 Mr Davies, who was the instigator in the murder and who was, on the findings of the sentencing judge, the only person who pre-planned the murder, has a far greater culpability because of his role in the offence. Mr Davies, for this offence, was sentenced taking into account a starting point for the head sentence of 40 years' imprisonment. 37 While a distinction of five years' imprisonment in a sentence is significant, an initial reaction to the starting point of the sentence of each offender is that there is insufficient difference to provide due discrimination for the different roles of each offender. 38 These are serious offences. The murder was a callous and violent act motivated by a desire to interfere with the due administration of justice, punish and prevent a witness from testifying, and no doubt motivated by a desire to deter others from doing likewise. Absent subjective circumstances, a sentence above the mid-range of sentences would be appropriate. In the case of Mr Carruthers, it is clearly not a worst-case scenario. While the offence was committed in company, it involved no pre-planning, no gratuitous violence and had no direct benefit to Mr Carruthers. The violence perpetrated by Mr Carruthers was not gratuitous because it was no greater than necessary to effect the crime and is therefore not an aggravating factor beyond that which is otherwise appropriate. 39 Mr Davies is in a different position. In the case of Mr Davies, the offence did involve pre-planning; and was more obviously an interference with the due administration of justice and a witness who was to testify against him. The crime directly benefited him. On his Honour's finding Mr Carruthers' motive to kill arose only after he was implicated in the attempt to murder by Mr Davies. 40 If 40 years' imprisonment were an appropriate starting point for Mr Davies, and there is no suggestion that it was not, then, intuitively, 35 years' imprisonment for Mr Carruthers seems, on its face, excessive. 41 Absent the sentence imposed on Mr Davies, a commencement of 35 years' imprisonment for Mr Carruthers is not excessive. It does not, however, allow sufficient difference between the sentence imposed on Mr Davies and on Mr Carruthers. It may be that the sentence imposed on Mr Davies is less than others may have imposed in the circumstances. There is no appeal against Mr Davies' sentence. While the sentencing judge deliberately chose a difference of 5 years' imprisonment in the commencement point, in my view the difference needed to be greater. There is a justifiable sense of grievance in the lack of sufficient disparity. 42 Yet, it is not now possible to increase the sentence on Mr Davies and any reduction in the commencement point for Mr Carruthers cannot reduce it to a level that does not keep it above mid-range. The commencement point must, in these circumstances, be a head sentence of over 27 years' imprisonment. 43 Further complications occurred because Mr Davies was sentenced for a number of offences at the same time and issues of totality arise, which may warrant a lesser sentence for this particular offence than might otherwise be the case. 44 Since error has already been shown, and the Court is required to re-sentence, some account must be paid to the disparity issue between Mr Carruthers and Mr Davies. Manifest Excess 45 Mr Carruthers also raises manifest excess as a ground of appeal. An error in a discretionary judgment can be either manifest or identifiable. As the Court accepts that there are identifiable errors, it is unnecessary to deal with an allegation that the sentence shows manifest excess. Nevertheless, it is necessary to remark that a lesser sentence than that which was imposed upon Mr Carruthers is warranted and, intuitively, the sentence imposed upon Mr Carruthers was excessive. That excess was due to errors that have otherwise been identified. Conclusion 46 Other than those to which reference has been made, I adopt all of the comments of the sentencing judge. No challenge is made to the refusal to find special circumstances and, it seems, no special circumstances exist. 47 Were it not for the sentence imposed upon Mr Davies, a starting point of 35 years' imprisonment would not be excessive. Nevertheless, to allow due discrimination between the two I would start with a head sentence of 32 years' imprisonment. Further, I would allow a combined discount of 37.5% for the utilitarian value of the plea of guilty (including the indication of the plea of guilty) and for assistance. I would make orders accordingly. 48 I propose the following orders: (i) Leave to appeal be granted; (ii) The sentence imposed on Peter John Carruthers on 21 October 2005, for the murder of Damien Joel Meredith, be quashed and in lieu thereof the said Peter John Carruthers be sentenced to a non-parole period of 15 years' imprisonment commencing 17 May 2004 and concluding on 16 May 2019 and a remainder of term of a further five years concluding on 16 May 2024. ********** 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.