Citation: R v David Maxwell Shepherd [2007] NSWSC 1416
Court: Supreme Court of New South Wales
Date: 14 December 2007
Judge(s): Hidden J
Background
The offender pleaded guilty to the murder of a woman at Bossley Park on 15 June 2006. The offender and his partner had known the deceased through a longstanding friendship between the two women. In the period leading up to the killing, the offender had engaged in a pattern of unsettling behaviour toward the deceased, including making threatening phone calls and engaging in sexual intercourse with her after claiming, falsely, to possess psychic powers.
In the early hours of 15 June 2006, the offender attended the deceased's home. She was found unconscious, and ambulance officers called to the scene observed bruising consistent with manual strangulation. She was placed on life support but died four days later. The offender and his partner initially gave false accounts to police, but the offender later changed his account significantly in a series of lengthy recorded police interviews.
A key dispute at sentencing concerned the degree of the offender's culpability. Specifically, the court had to determine whether the killing was a spontaneous act in response to the deceased producing a knife, or whether it was a premeditated act carried out pursuant to a plan with his partner. His partner had been separately charged with complicity in the murder and was due to stand trial in January 2008.
Legal Issues
- Whether the killing was spontaneous or premeditated, and how that finding affected the offender's objective culpability
- Whether the offender's account of the deceased producing a knife could be accepted
- How significant weight should be given to the guilty plea, including its utilitarian value and as evidence of remorse
- Whether the offence fell within, above, or below the mid-range of objective gravity for the purpose of applying the standard non-parole period of 20 years
- Whether any special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of term
Decision
Hidden J resolved the factual dispute about the circumstances of the killing on the criminal standard of proof. The court found it could not be satisfied beyond reasonable doubt that the killing was planned or premeditated in the sense of the offender attending the home with a firm intention to kill. However, the court was equally unable to accept the offender's account that the deceased had produced a knife and that he acted in a momentary panic. The court found the killing to be spontaneous in character, but was not persuaded the offender had told the whole truth about what occurred.
On objective gravity, the court placed the offence below the mid-range, though close to it. The court noted the absence of established premeditation, but observed that manual strangulation causing death is a serious act requiring sustained application of force. The overall circumstances, including the prior threatening conduct toward the deceased and the false accounts given after the event, bore on the assessment of culpability even if they did not establish a fully formed prior intention to kill.
On the guilty plea, the court acknowledged its considerable utilitarian value. The plea avoided a lengthy trial in which the deceased's 12-year-old daughter may have been called to give evidence. It also constituted some evidence of remorse, though the court expressed clear reservations: the offender had not expressed contrition in proceedings, the Crown case was strong, and the court was not satisfied the offender had been fully candid with police or the court.
The court declined to find special circumstances to alter the statutory ratio between the head sentence and the non-parole period. Hidden J concluded that the standard proportion would itself produce a sufficient period of supervised release on parole, and that no lesser non-parole period would adequately serve the purposes of retribution and deterrence.
Orders Made
- The offender was sentenced to a total term of 19 years imprisonment for murder
- Non-parole period of 15 years, commencing 3 July 2006 and expiring 2 July 2021
- Balance of term of 4 years, commencing 3 July 2021 and expiring 2 July 2025
- The offender becomes eligible for release on parole on 2 July 2021
Key Takeaways
- Hidden J applied a discount of approximately 20 percent to the head sentence in recognition of the utilitarian value of an early guilty plea, reducing the head sentence from 24 years to 19 years.
- Where the full circumstances of a killing cannot be established with certainty even after a plea of guilty, the sentencing court resolves factual disputes on the criminal standard, giving the benefit of reasonable doubt to the offender on aggravating matters.
- A spontaneous killing by manual strangulation, while assessed below the mid-range of objective gravity for murder, was placed close to that mid-range given the sustained nature of the act and the surrounding circumstances.
- Expressions of remorse carry limited weight where the offender has not articulated contrition before the court, the prosecution case was strong, and the court remains unconvinced that a fully truthful account has been given.
- The standard non-parole period for murder in New South Wales is 20 years, reserved for mid-range offences; departure below that figure requires either that the offence falls short of mid-range gravity or that other mitigating factors, such as an early plea, warrant a reduction.
Legislation and Cases Referenced
Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Lewis [2001] NSWCCA 448
- R v Tzanis [2005] NSWCCA 274
Legislation:
- No specific legislation was cited in the provided text, though the standard non-parole period for murder (20 years) referenced in the judgment derives from the Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 1.