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2
Supreme Court 6 July 2001

Regina v Cheatham

[2001] NSWSC 580

Assault & violenceHomicide
CRIMINAL LAW AND PROCEDURE SENTENCE RETRIAL MURDER AND WOUND WITH INTENT TO MURDER

Citation: Regina v Cheatham [2001] NSWSC 580
Court: Supreme Court of New South Wales
Date: 6 July 2001
Judge(s): Michael Grove J

Background

The prisoner stood for sentence following a jury conviction on two counts of murder and one count of wounding with intent to murder. The victims were his wife, one of his daughters (who was killed), and a baby daughter (who survived the attack). The offences arose from a single episode in which the prisoner stabbed his wife and three-year-old daughter multiple times and made a similar attempt on the infant. He subsequently attempted suicide.

This was the prisoner's second trial on the same charges. At the first trial, the jury rejected a defence of mental illness and Newman J imposed sentence. The Court of Criminal Appeal allowed an appeal on the ground that the jury had not been given the opportunity to consider manslaughter as an alternative verdict. All three counts were remitted for retrial.

At the retrial, the jury again rejected the mental illness defence and convicted on all counts. The matter then came before Grove J for resentencing.

  • What sentence was appropriate on resentencing following conviction at retrial, where the underlying facts were materially the same as at the original trial?
  • Whether it was appropriate to increase the sentence beyond that imposed by Newman J at the first trial, in circumstances where the retrial resulted only from the prisoner's own successful appeal, and the Crown had not asserted that the original sentence was inadequate.
  • Whether special circumstances justified a non-parole period that departed from the standard statutory proportion.

Decision

Grove J found that the facts before him were, for all practical purposes, identical to those before Newman J. His Honour incorporated Newman J's findings of fact by reference, noting that defence counsel took no substantial issue with any of those findings.

The court accepted that the prisoner had been suffering from a delusion about having AIDS at the time of the offences, but found that he nonetheless understood the nature and quality of his acts and knew they were wrong, both morally and legally. The killings had a claimed euthanasia character, but Grove J found this did not significantly reduce the prisoner's culpability given the jury's findings.

Grove J expressed clear reservations about increasing a sentence when the retrial was made necessary solely by the prisoner's successful appeal and the Crown had not contended that the original sentence was inadequate. Independently exercising his sentencing discretion, his Honour concluded that the appropriate sentence was identical to that previously imposed by Newman J. The prisoner's attempt at suicide after the offences, and the absence of any assessed ongoing risk to the community, informed the conclusion that the case did not fall into the worst category of murder.

Special circumstances were found to exist, justifying a non-parole period shorter in proportion than the statutory norm. Grove J also recommended that corrective services provide psychiatric treatment according to the prisoner's assessed needs.

Orders Made

  • Count 1 (murder of wife): 24 years imprisonment, commencing 6 March 1998, with a non-parole period of 16 years from the same date.
  • Count 2 (murder of daughter): 16 years imprisonment, commencing 6 March 1998.
  • Count 3 (wounding with intent to murder of second daughter): 12 years imprisonment, commencing 6 March 1998.
  • All sentences to be served concurrently.
  • Recommendation that the Corrective Services Department provide psychiatric treatment in accordance with the prisoner's assessed needs.

Key Takeaways

  • Increasing a sentence on resentencing following a retrial is inappropriate where the retrial was prompted solely by the prisoner's own successful appeal and the Crown has not asserted that the original sentence was inadequate.
  • A sentencing judge on retrial must exercise an independent discretion rather than simply reapplying the earlier sentence, but may legitimately arrive at the same result where the facts are materially unchanged.
  • Where a prisoner suffers a delusional belief at the time of offending but is nevertheless aware of the nature and quality of the acts and knows they are wrong, the mental illness defence is unavailable and culpability is not significantly reduced.
  • A genuine post-offence suicide attempt can be a relevant mitigating factor, capable of supporting a finding that the case does not fall in the worst category of murder.
  • Special circumstances justifying a reduced proportional non-parole period may be found even in serious, multi-count murder cases, where the sentencing judge identifies sufficient basis in the individual circumstances.

Legislation and Cases Referenced

Legislation:
- Relevant NSW sentencing statute (specific Act not identified in the judgment, but referenced in relation to non-parole period proportions)

Cases:
- No cases were expressly cited by name in the judgment text. The decision of Newman J at first instance and the Court of Criminal Appeal judgment allowing the retrial are referred to but not cited by name in the provided text.