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Judgment handed down in DPP v Perry; Perry v The Queen

01 July 2016

Sentencing for ‘statutory murder’

The Court of Appeal today said that sentencing practice for the offence of ‘statutory murder’ needed to change, to reflect the fact that it is not inherently less serious than the common law form of murder.

The offence of statutory murder (created by s 3A of the Crimes Act 1958) is committed when a person causes the death of another by a violent act done in the course of committing a crime of violence. In those circumstances, the offender is guilty of murder whether or not the killing was intentional.

In Victoria, the offence of murder can be charged either under the common law or under s 3A. The two offences carry the same maximum penalty of life imprisonment. In contrast to statutory murder, common law murder requires proof of intention to kill or cause really serious injury.

Until now, the Court said, statutory murder has been viewed as less serious than common law murder:

A number of sentencing decisions in this State have proceeded on the erroneous basis that the offence of statutory murder is a less serious form of murder than common law murder and should therefore attract sentences of a lesser order. The accepted (but erroneous) view has been that, under s 3A, the killing must be treated as unintentional and that, as a result, markedly lower sentences should be imposed than for common law murder.

The fact that intent does not have to be proved for statutory murder does not mean that it is inherently less serious than common law murder. The Court said:

For the purposes of conviction, the offender is treated as though he/she had a murderous intent. The offender’s (lack of) intention is immaterial.

Although not relevant to conviction for statutory murder, the offender’s intent at the time of the fatal act is relevant to sentencing:

The fact that s 3A relieves the prosecution of the obligation to prove intent does not, however, render the offender’s intent irrelevant or evidence of intent inadmissible. The sentencing court must therefore consider what the material before the court reveals about the offender’s state of mind with respect to the act causing death.

Thus, the offence of statutory murder covers the full range of conduct:

from the case where the death is an accidental result of the act of violence to the case where the death is the intended result of the act. On ordinary principles, it will be relevant to the sentencing court’s assessment of the gravity of the offence, and of the offender’s culpability, to consider where within that range the conduct is proved to fall.

The Court said that sentencing practice for statutory murder must change:

Sentencing standards for statutory murder must be increased to properly reflect the objective gravity of the offence, which carries the same maximum penalty as common law murder. The range of sentences for statutory murder — from the least serious to the most serious instances of the offence — should be encompassed within the range of sentences for common law murder.

The Director’s appeal

The question arose in an appeal by the Director of Public Prosecutions against the sentence imposed on Gavin Perry, who stabbed and killed Dermott O’Toole in the course of carrying out an armed robbery of Mr O’Toole’s jewellery shop in Hastings.

Perry pleaded guilty to statutory murder and was sentenced to 20 years’ imprisonment on that charge. Perry also pleaded guilty to a charge of intentionally causing injury and to armed robbery. He was sentenced to a total effective sentence of 27 years’ imprisonment with a non-parole period of 23 years’ imprisonment.

The Director of Public Prosecutions appealed against the 20 year sentence imposed on the offence of statutory murder, and against the total effective sentence of 27 years’ imprisonment, on the ground that they were manifestly inadequate.

The Court dismissed the Director’s appeal, noting that the sentence of 20 years’ imprisonment for statutory murder was three years higher than any sentence previously imposed for that offence:

Although we consider that the sentence imposed on the charge of statutory murder failed to reflect adequately the degree of criminality of Perry’s conduct, the judge sentenced Perry by reference to current sentencing practices for this offence, as she was required to do. The prosecutor did not suggest otherwise. The sentence was within the range reasonably open and the ground of manifest inadequacy therefore fails.

By way of guidance for the future, the Court said:

Had it not been for the constraints imposed by the existing jurisprudence on s 3A and by the manner in which the plea was conducted, her Honour might have made affirmative findings about murderous intent and about Perry’s foreknowledge of the effects of ice. In those circumstances, a sentence of at least 25 years’ imprisonment would have been appropriate on the charge of statutory murder.

Perry’s application for leave to appeal

The Court also dismissed Perry’s application for leave to appeal against his sentence on the ground that the principle of totality had been offended. The Court found that the criminality in the five offences with which Perry was charged was ‘of a high magnitude’. The Court stated:

Perry’s disregard for the law, given his extensive prior criminality and the fact that he has reoffended a number of times whilst on bail or on parole, not only merited condign punishment but reinforced the need for general and specific deterrence.

NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Read the full judgment on Austlii (External link)

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