Citation: R v Ray Tumanako [2001] NSWSC 126
Court: Supreme Court of New South Wales
Date: 2 March 2001
Judge(s): Sperling J
Background
The applicant was convicted of murder in March 1990 following the fatal stabbing of his former de facto partner at a kindergarten in Revesby on 14 February 1989. He was sentenced to penal servitude for life by McInerney J in May 1990, as was then required by law upon conviction for murder.
The applicant subsequently sought redetermination of his life sentence under the scheme established by Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. That scheme allows prisoners serving life sentences imposed before the relevant legislative changes to apply to the Supreme Court to have a finite term substituted.
The killing occurred after the applicant arrived at the kindergarten intending to give flowers to the deceased and persuade her to resume their relationship. When he saw her arrive with another man, he left his vehicle in a state of rage, armed with a knife, and stabbed her twice in the chest. The deceased's young child, then approximately four years old, witnessed the attack from the vehicle.
Legal Issues
- Whether the application for redetermination of the life sentence should be granted under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999
- What finite term of imprisonment and non-parole period would be appropriate, having regard to the objective seriousness of the offence, the circumstances of the killing, the applicant's personal history and custodial conduct, and prospects of rehabilitation and reoffending
Decision
Sperling J granted the application and redetermined the sentence. His Honour found the killing was not premeditated, having been carried out in a state of extreme rage after the applicant observed the deceased arrive with another man. The intention to kill appeared to have formed during, rather than before, the attack itself.
The killing in front of the deceased's young child was identified as a significant aggravating factor. His Honour acknowledged this was moderated to some extent by the applicant's severely impaired emotional state at the time, but emphasised that killing a mother in the presence of a young child remained an aggravating circumstance of considerable weight going to objective culpability.
His Honour considered the applicant's expressions of remorse shortly after the offence, his background and personal history (including a disturbed childhood and difficult early life), and his conduct during more than a decade of imprisonment. The Crown raised concerns about whether the applicant's non-violent prison behaviour reliably predicted future non-violence in intimate relationships, and about the potential role of alcohol. Sperling J was not satisfied these considerations raised a serious prospect of reoffending.
Applying the standard sentencing principles of rehabilitation, deterrence, and retribution, his Honour determined a sentence of 20 years imprisonment with a non-parole period of 14 years, to be taken as having commenced on 14 February 1989, the date the applicant was taken into custody.
Orders Made
- Application for redetermination granted
- Life sentence redetermined to a fixed term of 20 years imprisonment
- Non-parole period set at 14 years, commencing 14 February 1989 and expiring 13 February 2003
Key Takeaways
- Under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999, a prisoner serving a life sentence imposed before the relevant legislative changes may apply to the Supreme Court to have a determinate sentence substituted.
- Absence of premeditation and the presence of extreme emotional disturbance are relevant to the objective gravity of a murder, but neither eliminates the serious culpability involved in an intentional killing.
- Killing a person in the presence of a young child constitutes a significant aggravating factor going to the objective circumstances of the offence, even where the offender's emotional state reduced their capacity to fully appreciate that circumstance.
- Crown concerns about the reliability of prison conduct as a predictor of future violence in intimate relationships were properly raised and considered, but did not on the facts satisfy the court that a serious risk of reoffending existed.
- Standard sentencing considerations, including rehabilitation, specific and general deterrence, and community expectations of punishment and retribution, all applied to the redetermination exercise under the Schedule 1 scheme.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1 (redetermination of life sentences)
Cases cited:
No cases were cited in the portions of the judgment provided.