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Supreme Court 21 July 1999

R v Rosevear

[1999] NSWSC 732

HomicideDomestic & family violence
SENTENCING MURDER EXISTING LIFE SENTENCE SENTENCING ACT, S 13 A

Citation: R v Rosevear [1999] NSWSC 732
Court: Supreme Court of New South Wales, Criminal Division
Date: 21 July 1999
Judge(s): Studdert J

Background

The applicant had been convicted of the murder of his wife and sentenced to life imprisonment by Studdert J on 27 August 1990. The crime occurred on 19 October 1989 at a caravan park in Corowa, where the applicant grabbed his wife by the throat, pushed her onto a bed soaked in methylated spirits, and set it alight. The deceased survived for three days before dying from cardiac failure caused by burns to 65% of her body.

At the original trial, the applicant raised defences based on intoxication and diminished responsibility arising from alcohol-related brain damage. The jury rejected both defences and returned a verdict of murder. The sentencing judge at the time also rejected a submission that mitigating circumstances significantly reduced the applicant's culpability under the then-applicable s 19 of the Crimes Act.

Having served the requisite period, the applicant applied under s 13A of the Sentencing Act for the court to replace his indeterminate life sentence with fixed minimum and additional terms. The applicant was represented by counsel; the Crown also appeared.

  • Whether, having regard to all the circumstances of the murder and the applicant's full criminal history, a minimum term and additional term should be determined under s 13A of the Sentencing Act.
  • What weight should be given to the applicant's conduct and rehabilitation since sentencing, as reflected in reports from the Serious Offenders Review Council and other materials.
  • Whether the offence fell within a recognised category of lesser gravity, specifically whether "relationship type" or "domestic murder" cases warranted a more lenient range of sentence.
  • What minimum and additional terms were appropriate in all the circumstances.

Decision

Studdert J reviewed the circumstances of the murder and concluded that, on reflection, the crime was brutal and merciless and that there were no mitigating circumstances. The applicant's counsel did not advance any fresh mitigating submissions. The court found that the applicant had acted with intent to cause grievous bodily harm to his wife.

The court received an extensive report from the Serious Offenders Review Council dated May 1998, along with supplementary documentation and a reference from an employer, which addressed the applicant's behaviour, progress, and rehabilitation during his imprisonment. These materials were considered as required by s 13A(9).

On the question of comparable cases, the court referred to several decisions including R v Everett, where a minimum term of fifteen years and additional term of five years had been imposed. The court declined to accept the submission that the present offence was significantly less grave than Everett, noting features of both similarity and difference.

The court also declined to treat "domestic murder" or "relationship type matters" as a distinct, lesser category of murder, following the Court of Criminal Appeal's reasoning in Whitmore, which rejected the notion that such a classification exists. Each case must be assessed on its own facts, and while relationship dynamics may sometimes inform the sentencing exercise, they do not automatically constitute mitigation.

Orders Made

  • Minimum term of fifteen years penal servitude, commencing 16 January 1989 and expiring 15 January 2004.
  • Additional term of five years, commencing 16 January 2004 and expiring 15 January 2009.
  • The first date on which the applicant is eligible for release on parole was specified as 16 January 2004.

Key Takeaways

  • Under s 13A of the Sentencing Act, a court re-examining a pre-existing life sentence must consider all circumstances of the original offence, the offender's full criminal history, community safety, the offender's age, rehabilitation reports, and any other relevant matter.
  • Studdert J confirmed that the court may, on a s 13A application, revisit and affirm its original assessment that no mitigating circumstances existed, particularly where no fresh mitigating submissions are advanced.
  • The Court of Criminal Appeal's rejection of "ordinary domestic murder" as a recognised sentencing category, articulated in Whitmore, was applied: domestic context may sometimes inform the sentencing exercise, but it does not create a presumptively lower range of gravity.
  • Rehabilitation evidence gathered after the original sentence, including Serious Offenders Review Council reports and employment references, is expressly relevant to the s 13A exercise and was considered here.
  • A minimum term of fifteen years and additional term of five years was determined, consistent with the structure applied in comparable cases, while accounting for the specific facts of this offence.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 13A
- Crimes Act 1900 (NSW), ss 19, 23A, 463
- Criminal Procedure Act (NSW)

Cases:
- R v Stephens [1999] NSWCCA 80
- R v Previtera (1998) 94 A Crim R 76
- Whitmore [1999] NSWCCA 75
- R v Sorensen (unreported, Wood J, 6 September 1990)
- R v Perry (unreported, Studdert J, 1 November 1991)
- R v Lyttle (unreported, Newman J, 6 March 1996)
- R v Collins (unreported, McInerney J, 20 September 1996)
- R v Baraghith (unreported, Grove J, 28 November 1997)
- R v Everett (unreported, NSWCCA, 13 December 1995)