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Supreme Court 16 September 1999

R v Wilson

[1999] NSWSC 943

Homicide
CRIMINAL LAW DETERMINATION OF LIFE SENTENCE.

Citation: R v Wilson [1999] NSWSC 943
Court: Supreme Court of New South Wales (Common Law Division)
Date: 16 September 1999
Judge(s): Dunford J

Background

The applicant was a man in his mid-forties who, on 1 September 1989, murdered his 18-year-old son at a remote location near Inverell, New South Wales. He shot the deceased in the arm with a stolen rifle, then killed him with sustained blunt-force blows to the head using a rock. He subsequently concealed the body under vegetation and misled police for several days before leading them to the scene.

Following conviction for murder in May 1990, the applicant was sentenced by Finlay J to life imprisonment. In these proceedings, he applied under s 13A of the Sentencing Act 1987 for that life sentence to be re-determined by the substitution of a finite minimum term and additional term. The Crown did not oppose the application.

At the time of the re-determination hearing in August 1999, the applicant was 54 years old and had been in custody for approximately ten years. He had developed serious physical health problems, including emphysema and cardiac difficulties, and had maintained an excellent record in custody.

  • Whether the life sentence should be re-determined under s 13A of the Sentencing Act 1987 by the substitution of a fixed minimum term and additional term
  • What weight to give aggravating factors, including the identity of the victim as the applicant's own son and the absence of any established motive
  • What weight to give mitigating factors, including the applicant's age, deteriorating health, and custodial conduct
  • What risk, if any, the applicant posed of reoffending upon release

Decision

Dunford J noted that the offence was serious in nature. The victim was the applicant's own son, and no motive for the killing had ever been established. The court treated the killing of a child by a parent as an aggravating circumstance. The applicant's conduct in the lead-up to trial, including providing a false account implicating others and giving sworn false evidence, had created difficulties for both the sentencing judge and psychiatric experts at the time.

By the time of the re-determination, the applicant accepted responsibility for the killing, though he maintained he had no memory of the events and acknowledged what had occurred only on the basis of the evidence against him. Psychiatric evidence from Dr Jolly, accepted by the court, was that the applicant had come to genuinely accept responsibility and carried a significant burden of guilt. Dr Jolly also assessed the risk of reoffending as very low, citing the applicant's physical incapacity, his genuine acknowledgment of responsibility, and the absence of any pattern of similar conduct.

Dunford J accepted that the applicant's age, serious ill health, and excellent custodial record were subjective factors in his favour. The court was satisfied there was only a very slight risk of reoffending, reduced further if the applicant could maintain abstinence from alcohol. However, the court observed that remaining abstinent after release into the community might be more difficult in practice.

Orders Made

  • The applicant was re-sentenced to penal servitude comprising a minimum term of 15 years, deemed to have commenced on 6 September 1989, and an additional term of 5 years
  • The earliest date of eligibility for release on parole was fixed as 5 September 2004

Key Takeaways

  • Under s 13A of the Sentencing Act 1987, a court may re-determine a life sentence by substituting a defined minimum term and additional term, even where the Crown does not oppose the application
  • The killing of one's own child was treated as an aggravating factor in the sentencing exercise, particularly where no motive was ever established
  • Accepted psychiatric evidence of low reoffending risk, combined with advanced age and serious physical illness, can weigh in favour of a lower minimum term on re-determination
  • A prior false account implicating others, including sworn trial evidence, was noted as a complicating factor in assessing the offender's culpability and character, though it was not treated as a basis for additional punishment
  • The absence of an established motive, where an offender himself cannot explain why the offence was committed, did not operate to reduce the gravity of the conduct

Legislation and Cases Referenced

Legislation
- Sentencing Act 1987 (NSW), s 13A
- Crimes Act 1900 (NSW), s 19 (since repealed)

Cases
- R v Burke [1983] NSWLR 92
- R v Bell (1985) 2 NSWLR 466
- R v Cox (Court of Criminal Appeal, unreported, 19 June 1997)