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Supreme Court 20 April 2007

R v Saalfeld

[2007] NSWSC 376

Homicide
CRIMINAL LAW SENTENCE CONVICTION OF MURDER AFTER TRIAL STANDARD NON PAROLE PERIOD PROVISIONS APPLICABLE WHETHER STANDARD NON

Citation: R v Saalfeld [2007] NSWSC 376
Court: Supreme Court of New South Wales
Date: 20 April 2007
Judge(s): Howie J

Background

The offender was convicted by jury on 13 March 2007 of murdering Tina Maree Gestro in Hamilton on 19 June 2005. The two women had been close friends and were connected through the drug scene in the Newcastle area. Their relationship deteriorated in early 2005 over a dispute involving drugs and a silver chain that had been given to the deceased by her daughter.

The breakdown escalated over several months into a pattern of public threats by the offender against the deceased, including explicit threats to stab her. On the night of 19 June 2005, the offender and the deceased crossed paths on Beaumont Street, Hamilton. The offender walked across the road toward the deceased with a folding knife already in her bag and fatally stabbed her during the subsequent confrontation.

The offender testified at trial that she had accidentally struck the deceased while defending herself. The jury rejected that account, and Howie J also entirely rejected it, finding it contradicted by objective and reliable Crown witnesses and largely implausible.

  • Whether the offender stabbed the deceased with an intention to kill or merely an intention to cause grievous bodily harm (that is, serious injury).
  • Whether the standard non-parole period of 20 years for murder was the appropriate benchmark, or whether the circumstances warranted a departure from it.
  • Whether any subjective factors relating to the offender justified reducing the non-parole period.
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to alter the statutory relationship between the non-parole period and the balance of term.

Decision

Howie J found that the stab wound was inflicted with an intention to cause grievous bodily harm rather than an intention to kill. The offender stabbed the deceased once in the side and under the breast with a 10 cm blade knife she had retrieved from her bag while crossing the road toward the deceased. The judge accepted, on the whole, that the offender did not have the specific intention to kill, though the circumstances were plainly deliberate and violent.

On objective seriousness, the judge found the offence to be below the mid-range, given the finding as to intent. However, the circumstances remained grave: the offender had made repeated and specific threats to stab the deceased in the months leading up to the killing, she had armed herself before the confrontation, and she had a significant prior criminal record including violence.

The judge considered the offender's subjective circumstances, including her drug and alcohol use, her troubled background, the absence of genuine remorse, and the fact that she would likely serve her sentence in protective custody. None of these factors, individually or in combination, provided sufficient reason to reduce the non-parole period below the standard.

Howie J noted explicitly that the sentence imposed was longer than it would have been without the standard non-parole period provisions. The judge found no special circumstances warranting a departure from the statutory balance between the non-parole period and the balance of term, as the length of the sentence itself would provide sufficient time for the offender to transition to release.

Orders Made

  • The offender is convicted of murder.
  • Non-parole period of 16 years and 6 months, commencing 19 June 2005 and expiring 18 December 2021.
  • Balance of term of 5 years and 6 months, commencing 19 December 2021 and expiring 18 June 2027.
  • Total head sentence: 22 years.

Key Takeaways

  • The Supreme Court applied the standard non-parole period regime for murder and imposed a non-parole period of 16 years 6 months, explicitly noting the standard non-parole period produced a longer sentence than the judge would otherwise have imposed.
  • Where an offender makes repeated and specific pre-meditated threats to stab a victim and arms herself before a confrontation, those facts weigh heavily as objective aggravating circumstances even where the specific intent found is to cause grievous bodily harm rather than to kill.
  • A finding that the offender intended to cause grievous bodily harm, rather than intending to kill, placed the offence below the mid-range of objective seriousness for murder, which influenced the extent of departure below the standard non-parole period of 20 years.
  • Serving a sentence in protective custody was acknowledged as a relevant factor but given limited weight in the particular circumstances of this case.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, no special circumstances were established where the overall length of the sentence was sufficient to accommodate the offender's needs upon release without adjusting the statutory ratio between the non-parole period and balance of term.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (statutory ratio between non-parole period and balance of term; special circumstances)

Cases:
- No specific cases were cited in the portion of the judgment provided.