Citation: REGINA v RHB [2007] NSWSC 1466
Court: Supreme Court of New South Wales
Date: 17 December 2007
Judge(s): Hall J
Background
The offender, referred to throughout the proceedings by initials pursuant to a suppression order, was tried on two counts of murder relating to the deaths of two young children approximately eleven years apart. The first victim, Caleb Paull, was fourteen months old when he died on 28 January 1993. The second victim, Isaac Schoer, was the son of Caleb's aunt and was two years old when he died on 16 February 2004. In both cases, the child had been in the offender's sole care at the relevant time.
Medical evidence in both cases identified non-accidental traumatic head injuries with remarkable similarities, including retinal haemorrhages, brain swelling, and subdural haemorrhage. The offender did not give evidence at trial, and the precise mechanism of injury in each case was not established.
The jury returned a verdict of not guilty of murder but guilty of manslaughter in relation to Caleb, and a verdict of guilty of murder in relation to Isaac. The matter then proceeded to a sentencing hearing before Hall J.
Legal Issues
- Whether the murder of Isaac Schoer fell within the worst category of cases warranting a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
- What level of culpability attached to each offence, taking into account the jury's different verdicts on the two counts
- What weight should be given to the offender's potential future dangerousness in fixing the appropriate sentence
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term
- How the sentences for the two offences should be structured and accumulated
Decision
Hall J declined to impose a life sentence for the murder of Isaac Schoer. While the offence was grave, the court found it did not reach the threshold of the worst category of cases. The court had regard to the level of culpability, the objective circumstances of the offence, the absence of a prior criminal or violent history, and the absence of any identified psychological or psychiatric disability affecting the offender's conduct.
The court found that the offender occupied a position of trust in relation to both children and that the injuries in each case involved significant force. The jury's different verdicts were taken to reflect that the offender's intent in relation to Caleb could not be established at the level required for murder, whereas in Isaac's case the jury was satisfied of the requisite murderous intent. The court treated the two offences as reflecting different levels of culpability accordingly.
On the question of future dangerousness, the court made a finding of limited future dangerousness. This finding was taken into account when structuring the non-parole period for the murder conviction, which was set at 80 per cent of the head sentence rather than the statutory norm of 66 per cent. The court considered this longer-than-normal non-parole period appropriate in all the circumstances, but declined to find special circumstances that would further alter the ratio.
The sentence for manslaughter was ordered to run first, with the murder sentence accumulated wholly upon the expiry of the manslaughter non-parole period, producing an effective head sentence of 30 years and a total non-parole period of 24 years and six months.
Orders Made
- For the manslaughter of Caleb Paull: non-parole period of 4 years and 6 months commencing 6 May 2005 and expiring 5 November 2009, with a balance of term of 1 year and 6 months expiring 5 May 2011
- For the murder of Isaac Schoer: non-parole period of 20 years commencing 6 November 2009 and expiring 5 November 2029, with a balance of term of 10 years expiring 5 November 2039
- The murder sentence was accumulated wholly upon the manslaughter non-parole period, producing an effective head sentence of 30 years and a total non-parole period of 24 years and 6 months
Key Takeaways
- A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires that the offence fall within the worst category of cases; the Supreme Court here declined to make that finding despite a murder involving a young child in a position of trust
- Where a jury returns different verdicts on related counts, the sentencing court treats those verdicts as reflecting distinct levels of culpability and sentences accordingly, without allowing the more serious verdict to colour the treatment of the lesser one
- A finding of limited future dangerousness can justify setting the non-parole period at a higher proportion of the head sentence than the statutory norm of 66 per cent, without the need to identify special circumstances in the opposite direction
- Full accumulation of sentences is available where two separate offences, committed approximately eleven years apart, each warrant distinct and consecutive punishment
- The absence of prior criminal or violent history, and the absence of identified psychological or psychiatric factors bearing on the offender's conduct, are relevant subjective considerations even in cases of extreme objective gravity
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
- Crimes Act 1900 (NSW)
- Uniform Civil Procedure Act 2005 (NSW), s 72
Cases:
- Knight v Regina [2006] NSWCCA 292
- Olbrich v The Queen (1999) 199 CLR 270
- Regina v Berg [2004] NSWCCA 300
- Regina v Folbigg [2003] NSWSC 895; [2005] NSWCCA 23
- Regina v Harris [2000] NSWCCA 469
- Regina v King [2004] NSWCCA 444
- Regina v Merritt [2004] NSWCCA 19
- Regina v O'Connell [2004] NSWSC 1120
- Regina v Previtera (1997) 94 A Crim R 96
- Regina v Twala (CCA, unreported, 4 November 1994)
- Regina v Veen (No 2) (1988) 164 CLR 465
- Regina v Way (2004) 60 NSWLR 168