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Supreme Court 30 March 2004

Regina v Stone

[2004] NSWSC 224

Also reported as 144 A Crim R 568
Homicide
SENTENCE MURDER PLEA OF GUILTY

Citation: Regina v Stone [2004] NSWSC 224
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 March 2004
Judge: Michael Grove J

Background

In July 1990, a 21-year-old woman was strangled in her home. The crime scene bore distinctive features: a football sock tied around her throat, and other socks and stockings attached to the corners of her bed. Police stored biological material from the scene in a laboratory freezer, but investigations at the time identified no suspect.

Nearly eight years later, in March 1998, the offender attacked another woman in circumstances that closely mirrored the 1990 murder, including pantyhose tied to bedposts and a knotted pair of socks. During that attack he told his victim he had killed before. He was convicted of the 1998 offence and, while serving that sentence, was required to provide a DNA sample for a data bank.

In May 2002, police tested the stored biological material from the 1990 murder against the data bank and obtained a matching profile. The offender was arrested in January 2003 in Tasmania, where he had been living. He was arraigned for trial in February 2004, at which point he entered a guilty plea, having communicated that intention six days earlier.

  • What sentence was appropriate for a murder committed in 1990, where the offender was not arrested until 2003 and pleaded guilty only at the commencement of trial in 2004?
  • What sentencing pattern applied: that prevailing in 1990 (when the offence was committed) or at the date of sentence?
  • What weight, if any, should be given to the offender's guilty plea, given its relatively late timing?
  • How should the court balance aggravating factors (objective seriousness, high risk of reoffending, prior violent offending) against mitigating factors (the guilty plea, health problems, drug intoxication at the time of the offence, and the passage of time)?
  • Did the level of culpability reach the threshold of "extreme" warranting a maximum sentence?

Decision

Grove J concluded that the sentencing pattern as it existed in 1990 governed the assessment, given that the offence occurred in that year. Applying that pattern, he assessed the appropriate term at 24 years' imprisonment before any discount for the guilty plea.

The offender's culpability was described as high but not extreme, and the Crown's submission that a maximum sentence was warranted was rejected. Grove J took into account the objective seriousness of the offence, the vulnerability of the victim, the nature of the attack, the offender's prior violent and sexual offending in 1998 and earlier criminal history, and a psychiatric assessment indicating a high risk of reoffending. These factors were weighed against mitigating considerations including the guilty plea, the offender's serious health problems, a degree of drug intoxication at the time of the offence, and the long delay between the offence and the proceedings.

A discount of one-eighth was applied to reflect the utilitarian value of the guilty plea, which was described as relatively late. Grove J noted the plea spared witnesses from giving evidence and avoided the cost and burden of trial, but did not treat the plea as attracting a larger discount given its timing. No special circumstances were found to justify departing from the standard non-parole period ratio.

The court also observed, without treating it as an adverse sentencing factor, that the decision to call the offender to give confessional evidence in open court, without apparent regard for the impact on the victim's family who were present, was a matter warranting consideration by lawyers in future proceedings of this kind.

Orders Made

  • The offender was sentenced to imprisonment for 21 years, dating from 21 January 2003.
  • A non-parole period of 15 years and 9 months was ordered, commencing 21 January 2003 and expiring 20 October 2018.
  • The first date of eligibility for parole was set as 20 October 2018.

Key Takeaways

  • Where a murder was committed in 1990 but sentenced in 2004, the Supreme Court applied the sentencing pattern as it existed at the time of the offence, not at the time of sentence.
  • A guilty plea entered only at arraignment on the day fixed for trial attracted a discount of one-eighth, reflecting its relatively late timing while still acknowledging its utilitarian value to the justice system.
  • High culpability does not automatically equate to extreme culpability: the court declined to impose the maximum sentence despite describing the crime as horrendous and the offender's risk of reoffending as high.
  • Sentencing courts must take account of a predicted high risk of violent or sexual reoffending, but are prohibited from extending a term purely as a form of preventive detention; these considerations require careful and cautious balancing.
  • The passage of more than thirteen years between the offence and arrest, and the role of DNA evidence in solving a cold case, formed part of the factual matrix but did not displace the standard sentencing framework for murder.

Legislation and Cases Referenced

Legislation:
- Sentencing legislation (New South Wales), s 61(1) (maximum penalty provision for murder)

Cases:
- R v McNamara [2004] NSWCCA 42