Supreme Court New South Wales Medium Neutral Citation: R v Kirchner [2011] NSWSC 1516 Hearing dates: 17 November 2011 Decision date: 09 December 2011 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Sentenced to a term of imprisonment with a non-parole period of 6 years, commencing on 23 April 2010 and expiring on 22 April 2016. The balance of term is 2 years, 9 months and 18 days, which is to commence on 23 April 2016 and to expire on 9 February 2019. The offender will be eligible for release on parole on 22 April 2016. Order that the firearm charge before the Court under the s 166 certificate be dismissed. Catchwords: CRIMINAL LAW - sentence - plea of guilty - murder - aided and abetted - aggravating and mitigating factors - special circumstances - victim impact statement Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Aoun [2006] NSWSC 800 Aoun v R [2007] NSWCCA 292 R v Dodd (1991) 57 A Crim R 349 R v McGaw [2007] NSWDC 33 R v Previtera (1997) 94 A Crim R 76 R v Scott [2005] NSWCCA 152 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Tzanis [2005] NSWCCA 274 SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249 Category: Sentence Parties: Regina (Crown) Aaron John Kirchner (Accused) Representation: Counsel: Mr P Cattini (Crown) Mr P Winch (Accused) Solicitors: Director of Public Prosecutions Legal Aid Commission of NSW (Accused) File Number(s): 2010/86226 Publication restriction: None Judgment 1The offender, Aaron John Kirchner, stands for sentence for the murder of Scott Bryan. He was arrested on 23 April 2010 in Queensland. He pleaded not guilty to the offence in the Local Court, but admitted his offence on 19 October 2011, on the day that the hearing was due to commence in this Court in Queanbeyan. The plea was entered before the jury was empanelled. In entering his plea, the offender said that it was on the basis that he had aided and abetted in the murder. It is common ground that it was not the offender who fired the shot which killed Scott Bryan. 2Also before the Court is a certificate under s 166 of the Criminal Procedure Act 1986 in relation to a charge of buy a firearm without a license. It is common ground between the parties that this charge should be dismissed. 3The maximum penalty for the crime of murder is life imprisonment (s 19A of the Crimes Act 1900). The maximum penalty for a person who aids and abets the commission of an offence, a principal in the second degree, is the same as for the person who actually commits that offence (s 345 of the Crimes Ac t). A principal in the second degree is a person who is present, aiding and abetting or encouraging the person who actually commits the offence, but plays no part in the commission of the offence and is not present as a part of a joint criminal enterprise (see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316). 4Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 ('the Act') requires that a sentence of life imprisonment be imposed if the court is satisfied that the level of culpability in the commission of the offence is so extreme, that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown did not seek such a sentence in this case. It was argued for the offender that such a sentence could not be imposed, this being an offence not falling within the worst category. The offender was a principal in the second degree, with his culpability falling below that of the co-accused, without significant aggravating circumstances arising to be considered on the sentence. I am satisfied that those submissions must be accepted. 5The Parliament has also imposed a standard non-parole period of 20 years imprisonment under s 54A of the Act for an offence of murder falling in the middle of the range of objective seriousness of such offences. A non-parole period is the minimum period that an offender will serve in prison for the offence, before being released on parole for the balance of the sentence. Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, even in the case of a plea, in the way recently discussed in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154. Also to be noted in this case, however, is the view that the standard non-parole period does not apply to offences of aid and abet murder (see R v Aoun [2006] NSWSC 800 at [40]; Aoun v R [2007] NSWCCA 292). 6Also to be taken into account is s 44(2) of the Act, which specifies that "[t]he balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more". If there is to be any adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628). 7In this case, the effect of s 23 of the Act must also be considered. It allows a lesser penalty to be imposed on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned, or any other offence. The section provides a range of specific factors which must be considered. It also requires that the sentence imposed as a result, must not be unreasonably disproportionate to the nature and circumstances of the offence in question. The Evidence 8The offender did not give evidence, but the parties agreed on the facts. They were that Scott Bryan and the offender's co-accused, had been friends for a number of years. They were both being treated for schizophrenia, probably developed as the result of chronic cannabis abuse, or at least exacerbated by such abuse. The offender was employed by the co-accused in a lawn mowing business. They both regularly smoked cannabis. 9Scott Bryan was not employed. He lived alone and was medicated for his mental illness and for a blood clot condition. He was unable to walk long distances as a result of this condition. He was reported missing by a mental health worker in December 2008. 10On 5 December 2008, police attended Scott Bryan's unit. It was found locked. His wallet, keys and his medication, as well as a bowl with cannabis residue and a bong were found there. There was no sign of foul play, a struggle, or any intended long term departure. His mobile phone was not found. On 12 December when police returned to the unit, there was no evidence that anyone had entered. 11In April 2009, the co-accused, was interviewed by police while in custody on unrelated matters. He denied any knowledge or involvement in the disappearance of Scott Bryan. 12Scott Bryan's body was discovered at about 9.30am on 23 June 2009 in a thickly vegetated area near a creek bed in the Nelligen area where the co-accused lived. A shallow grave with a boot and dark coloured T-shirt were found protruding from the ground. The post mortem established that the cause of death was a shotgun wound to the head. 13On 30 June 2009, the offender was interviewed by police, but he denied any involvement in Scott Bryan's death. In April 2010, he was arrested in Queensland. He then made admissions to being present at the time of the murder, but maintained that the co-accused committed the murder; that he was not aware of what the co-accused had planned to do; and was shocked when he witnessed the shooting. He also denied assisting the co-accused with the murder, or burying the body, but assisted police in a re-enactment of the murder at the crime scene. He was then charged. 14On 5 May 2011, the offender was interviewed again. He then made admissions to assisting the co-accused with the burial of Scott Bryan's body on the morning after the murder. The plea of guilty entered in October 2011, acknowledged that shortly before the murder, the offender became aware that the co-accused intended to kill Scott Bryan. It also acknowledged that by his presence and willingness to assist, if necessary, the offender aided and abetted in the murder of Scott Bryan. 15Also in evidence were the offender's criminal history, which showed a number of offences, in respect of almost all of which small fines were imposed. There was also a three year license disqualification and 100 hours community service order, for a driving offence and another disqualification of nine months. In the case of an offence for possessing a knife, a fine and good behaviour bond were imposed. 16There were various documents in evidence, including transcript of police interviews in which the offender made various admissions; a report of Dr Peter Ashkar, a consultant forensic psychologist who had examined the offender; letters from Josephine Kirchner and Ross Kirchner, which both spoke of the offender's troubled childhood and behavioural problems; and various documents from the Crown brief which exemplify correspondence written by the co-accused since his arrest. 17Dr Ashkar's report indicated that the offender is aged 27 years, a single man with no children. He was lucid and showed no signs of perceptual disturbance or disordered thought. The offender gave an account of his family background and life, describing a happy childhood and stable family environment. He was treated for attention deficit hyperactivity disorder, between ages 10 to 13 years. He had no other psychiatric history, but had commenced to smoke cannabis as a teenager. He carried a knife and had poor school attendance, before leaving school aged 15 years. He then worked as a labourer, began but did not complete a horticultural apprenticeship and later began working in the co-accused's lawn mowing business, approximately six months before the murder. He then mixed in a circle of friends, some of whom used drugs and engaged in crime. 18He reported a history of hazardous cannabis use, smoking most days between ages 15 and 17 and intermittent use subsequently, including in the twelve months preceding the murder. He reported then using up to one gram of cannabis per day. He reported no alcohol abuse. 19He knew the co-accused for about two years. They were not friends, it was a work relationship. He only knew Scott Bryan as a friend of the co-accused. He feared the co-accused after the murder. He stopped working for him and later left the Batemans Bay area to search for employment elsewhere. He was in fear for his safety and did not go to police, because he feared that he would be implicated in the murder. 20The offender expressed certain regret, telling Dr Ashkar: "I feel really bad about everything. Really bad that Scott Brian(sic) had to die, that I saw it and did nothing about it basically. Since I've come to gaol, there have been times where I have been scared. I don't know how it's affected my family. It can't be a good thing. I've got to live with it now. It's certainly not going to be something I'm going to forget." 21Dr Ashkar administered various tests to assess the offender's cognitive functioning, mood and personality functioning. His opinion was that: - the offender was a man of average to high average intelligence, with difficulties with aspects of his cognitive function, involving working memory, divided attention and impulse control, consistent with his history of attention deficit hyperactivity disorder. This may have contributed to poor judgment and decision-making. Cannabis use was likely to have exacerbated his cognitive difficulties and contributed to his poor judgment and decision making at the time of the offence. - The offender had no serious mental illness. His cannabis dependence disorder was in remission with his incarceration. There were no serious symptoms of anxiety, depression or psychological trauma and he had considerable psychological resilience. He was not a violent offender, or a violence risk. He had strong intellectual resources and considerable educational and vocational potential. - There was a risk of cannabis relapse after release from a controlled environment and he should then participate in a relapse prevention program and should be assessed for management of a possible attention deficit hyperactivity disorder. The parties' cases 22The only significant issue lying between the parties was the amount of discount to which the offender was entitled to receive on sentence, in the circumstances which here arose for consideration. The Court's sentencing task 23The Parliament requires that the sentence imposed on the offender be determined having in mind the purposes of sentencing set out in s 3A of the Act. Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 24The sentence imposed must reflect the gravity of this offence, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). The offender's guilty plea must be taken into account (s 22 of the Act). Section 21A also requires that consideration be given to specified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of this offence. Consideration must also be given to general and specific deterrence in the sentence imposed. For reasons which will become apparent, it seems to me that both general and specific deterrence have a particular role to play in the sentence imposed in this offence. The sentence which is finally imposed must also be reasonably proportionate to the circumstances of the crime committed (see R v Sc ott [2005] NSWCCA 152 at [15]). The seriousness of the offence 25The agreed facts and the other evidence I have referred to, reveal that this was a serious offence. While the offender did not plan to kill Scott Bryan and did not himself fire the shot which killed him, he became aware shortly beforehand of what the co-accused proposed to do. By his plea, the offender has acknowledged that by his presence, he was willing to assist, if necessary, in that awful undertaking. The following day the offender helped bury Scott Bryan's body, thereby helping avoid detection of his crime. He later persisted in his denials of his offence, up to the day that the hearing was to commence. 26The offender has given no evidence himself to explain his actions. The evidence provided some insight into the offender's troubled teenage years, when problems with drug use emerged. At the time of the offence he was a habitual drug user, mixing in a circle of people involved in crime and drugs, but there is no suggestion that he was drug affected on the day of the offence. There is evidence that he was in fear of the co-accused after the offence. Given evidence of what the co-accused has written while in custody, it may be accepted that the offender had a basis for such fear. Without evidence as to the offender's experiences before the offence, what led him to provide the co-accused with the assistance disclosed by the evidence, may not be speculated about. None of this sheds any light on the nature of the offending which here arises for consideration. 27Nevertheless, it must be accepted that the offender's moral culpability for the murder was lower than that of the co-accused, who appears to have implemented what he had planned and with the offender's assistance, disposed of the body to conceal the murder. Notwithstanding his lesser responsibility for Scott Bryan's death, there can be no question that the offender's conduct was reprehensible, giving rise to the need for both general and specific deterrence to feature in the sentence imposed upon him. 28The offender's various later accounts of his involvement and the plea which he finally entered late, show an acceptance arrived at only a considerable time later, of his responsibility for his grave criminal conduct. That was something which plainly only grew slowly. For a long time the offender was content for his offence to remain hidden and when first confronted, content to deny his responsibility for his actions. 29That an acceptance of his guilt and remorse for what he had done eventually grew must, however, be accepted and taken into account. That, however, does not reduce the objective seriousness of this offence. While it must be accepted that the co-accused's moral culpability for the killing is higher than that of the offender, his offence is also a serious one, in respect of which a punishment which acts as a real deterrent, must be imposed. Aggravating factors 30It was accepted by the offender that aggravating factors arose to be considered under s 21A(2)(c) and (e) of the Act. They were that a shotgun was used to kill Scott Bryan and that it was a killing committed in company. 31I accept the submission that in considering these factors, account must be taken of the fact that it was the co-accused who fired the shotgun which caused Scott Bryan's death and that the offender's presence at the shooting, is in the circumstances of this offence, in the nature of an element of the offence, rather than as a separate aggravating factor. Mitigating factors 32It was common ground that mitigating factors specified in s 21A(3)(b), (e), (g), (h), (i) and (k) all arise to be considered in this case. They are: "(b) the offence was not part of a planned or organised criminal activity, ... (e) the offender does not have any record (or any significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ... (k) a plea of guilty by the offender (as provided by section 22), ..." 33The agreed facts reveal that the offender had no foreknowledge of the proposed killing, until very shortly before the shooting. He was not involved in any planning of the offence. He has no prior offences for violence and otherwise, a series of relatively minor offences, as I have described. There is evidence of family support. On the evidence, Dr Ashkar's assessment that he is not a violent offender, or a violence risk, may be accepted. His belated plea reflects an acceptance of his responsibility for his actions. In the circumstances, I accept that the likelihood of the offender re-offending is not high and that he has relatively good prospects of rehabilitation. 34There is also various evidence of remorse, including that flowing from the guilty plea and from statements made by the offender to police and to Dr Ashkar. The plea was entered late, but I accept, as was argued, that consideration must be given to the fact that was in part in circumstances where there were delays because of the offender's custodial situation. Also to be taken into consideration is that the plea followed various assistance earlier provided to police and co-operation in relation to the preparation of the matter for trial, which also evidenced remorse (see R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151). There is also a promise of future assistance, which is also consistent with real remorse. The discounts 35The offender's plea was only entered on the day the matter was listed for trial, but before the jury was empanelled. It was common ground that it is within my discretion in those circumstances to grant the offender some discount for the utilitarian value of his plea of guilty, in accordance with the Court of Criminal Appeal's judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The maximum discount for an early plea is 25%, but it was accepted that such a discount is not available in these circumstances. 36On the Crown's approach, while this plea was late, it nevertheless saved the community great expense, with the result that a discount in the range 10-15% was available. On the case put for the offender, the plea entered before the jury was empanelled saved great inconvenience to members of the public and to witnesses. It was also to be considered that even beforehand, agreements had been reached which had reduced the witnesses to one, being the officer in charge. In the result, a discount in the order of 15-20% was warranted. 37The purpose of a utilitarian discount is as explained by Spigelman CJ, namely, that it reflects the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses, especially victims, who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. These benefits must be identified by a trial judge when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see R v Thomson; R v Houlton at [115] - [123]). 38In this case, I am satisfied that given the time and circumstances in which the offender's plea was entered, he must have some discount on this account. In my assessment, a discount of the amount proposed for the offender would be too high, given the time that the plea was entered, notwithstanding that there was some prior assistance in relation to evidentiary matters. That assistance must certainly be taken into account, but even when considered together with the very late plea, the circumstances do not warrant a discount of the level proposed. 39In this case also to be considered is a discount for assistance. Section 23(2) of the Act requires that consideration must be given to the following factors: "(a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed)" 40It is also settled that where discounts on both heads arise for consideration, a combined discount should be specified, because there will be certain common considerations arising to be taken into account (see R v Thomson; R v Houlton at [160] for instance). 41The evidence here established that despite his initial denials, the offender later gave useful assistance to the police, as well as an undertaking to give evidence in the proceedings against the co-accused. The Crown's case was that this evidence would be of considerable assistance, it being the only available first hand evidence of the shooting. It is also corroborative of other evidence to be led as to admissions made. Those submissions must be accepted. 42There is also evidence that threats have been made against the offender by the co-accused. It was common ground that as a consequence of his assistance, he will continue to be at risk of harm during incarceration, which will be under more onerous conditions as a result. That must be accepted. These are also matters which must be taken into account. 43A combined discount of 50% was urged for the offender as a result. That conclusion was not disputed by the Crown, notwithstanding the differences in approach to the discount for plea. 44For the offender, reliance was placed on R v Sukkar , to support the submission that a combined discount for the plea of guilty and assistance ought to be 50%. There a trial judge had granted a discount of between 20% and 25% for a relatively early plea, entered close to the first reasonable opportunity for the plea to be entered. A composite discount of 45% for that plea and the offender's assistance, was reduced on appeal to 35%, the view taken being that there was limited evidence of assistance, contrition or hardship. This is not such a case, although it was not an early plea. 45I am satisfied that in the circumstances of this case, a lesser penalty must be imposed on the offender, both for his past assistance and that which he has undertaken to provide in future. Having considered all of the matters I have mentioned, I have concluded that a combined discount of 45% is warranted in this case. In my view, any greater discount would result in a penalty disproportionate to the gravity of the offence and the circumstances of the offender. 46Sentencing judges must also be careful to ensure that the component of the discount which relates to the promise of future assistance be specifically quantified. That allows the parties to know what the position is and also enables an appellate court to deal appropriately with any application for review brought by the Crown, in the event that such a promise is not fulfilled (see SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim R 249). In this case, I identify that component to be 20%. Standard non-parole period and comparable cases 47For the reasons which I have explained, the standard non-parole period for the offence of murder, does not reflect the appropriate sentence for this offence. 48It was submitted that the sentence imposed in R v Aoun , where the offender was convicted by a jury after trial, for being an accessory before the fact to a murder, provides some assistance, in determining what the sentence to be imposed in this case should be. There a sentence of 17 years, 3 months was imposed, with a non-parole period of 13 years. There was in that case no discount. The offence involved a drive-by shooting where the offender's criminality was found to be below that of some of the others involved, but he was found to be an essential cog in the events as they occurred, willing, even if somewhat reluctantly, to assist in effecting the death or serious injury of another human being and giving advice as to how this should be effected. On appeal this was considered to be a heavy, but not manifestly excessive sentence (see Aoun v R ). 49Here, too, the offender's criminality was less than that of the co-accused, but the offender was not an essential cog in the shooting, he provided no advice as to the commission of the offence, but was, nevertheless, prepared to assist if necessary and did assist in the burial of Scott Bryan's body the following day in the bush, so that the murder could be concealed. It follows that while Aoun v R was of some assistance in assessing the matters which here arise for consideration in determining the sentence to be imposed, at the end of the day each case must be assessed in the light of its own facts. Special circumstances 50In this case, I am also of the view that there should be a finding of special circumstances warranting a small reduction in the proportion of the sentence to be represented by the non-parole period. This reflects that this is the offender's first prison sentence; that he would be assisted by participation in a relapse prevention program, when released on parole; and that he will serve his sentence in protection, as the result of threats to which he has been subjected. That there will be resulting hardship, which must be considered in determining sentence, must be accepted. Victim Impact Statement 51From what I have said about the facts, it will readily be apparent that the circumstances of this offence are tragic. A victim impact statement from the victim's mother was read in Court. She spoke powerfully of the devastating impact of the time that Scott Bryan's awful fate was unknown to her; the circumstances and impact of the finding of his body; and the grief and horror brought by ongoing thoughts about the lonely circumstances of his death. Her words of sorrow for the offender's family were also heartrending, for anyone who heard them expressed in the courtroom. 52These proceedings can be of little consolation to her, but for myself, I convey my very deepest sympathies for what she has had to endure over the loss of her son. I hope that an understanding of the steps taken by our society to deal with his death, and those who caused it, will bring her some small measure of comfort and peace of mind. 53In making these comments, I note that the law as to the receipt of victim impact statements is well settled and that I have adhered to that approach in receiving the statement provided in this case. In R v Tzanis [2005] NSWCCA 274, five members of the Court of Criminal Appeal considered the approach established in R v Previtera (1997) 94 A Crim R 76, which has since been followed. They concluded that approach must be adhered to. That means that an unsworn, untested victim impact statement may not be taken into account in sentencing the offender, for reasons which were explained at length by Hunt CJ at CL in 1997 and which I will not deal with further, in this case. Conviction and sentence 54Having considered all of the matters I have mentioned, I have concluded that but for the utilitarian value of the offender's plea and the discount which must be granted in the circumstances before the Court to reflect the offender's past and future assistance, I would have imposed a head sentence of imprisonment of 16 years. With discount, the sentence is 8 years, 9 months and 18 days. I will fix a non-parole period of 6 years. 55Account must also be taken of the fact that the offender has been in continuous custody since his arrest in Queensland on 23 April 2010, on account of this offence. In this case, it is appropriate to commence the sentence imposed on the offender from that date. 56Aaron John Kirchner, I convict you of the murder of Scott Bryan. 57You are sentenced to a term of imprisonment with a non-parole period of 6 years, commencing on 23 April 2010 and expiring on 22 April 2016. I set a balance of term of 2 years, 9 months and 18 days, which is to commence on 23 April 2016 and to expire on 9 February 2019. You will be eligible for release on parole on 22 April 2016. 58I order that the firearm charge before the Court under the s 166 certificate be dismissed. ********** 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: 22 November 2013