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Supreme Court 8 February 2008

R v Bruce Allan BURRELL [No 3]

[2008] NSWSC 30

Homicide
CRIMINAL PRACTICE & PROCEDURE SENTENCE SHOULD THE SENTENCE BE A LIFE SENTENCE? WAS IT IN THE WORST CLASS OF CASE? CRIMINALITY SIMILAR TO CONTRACT KILLING DETERMINATE SENTENCE.

Citation: R v Bruce Allan Burrell [No 3] [2008] NSWSC 30
Court: Supreme Court of New South Wales
Date: 8 February 2008
Judge(s): Kirby J

Background

The accused was convicted by jury on 17 September 2007 of the murder of Mrs Dorothy Davis, an elderly woman who disappeared on 30 May 1995 after leaving her home in Lurline Bay on foot to visit a friend. Her body was never found. The accused had been charged with her murder in November 2002, more than seven years after her disappearance.

The Crown case established that the accused had borrowed $100,000 from Mrs Davis, a family friend who had known his wife since childhood. By May 1995, he was unemployed, had no income, and was unable to repay the loan. Evidence from a witness indicated that Mrs Davis had been pressing the accused for repayment and had threatened legal action. The sentencing court accepted that this financial pressure provided the motive for the murder.

The accused had also previously been convicted of the separate murder of a woman named Mrs Whelan. That prior conviction was relevant to the sentencing discretion in the present matter, particularly on the questions of dangerousness and community protection.

  • Whether a life sentence was warranted, or whether a determinate sentence was appropriate
  • Whether the offence fell within the "worst category" of murder cases
  • How the accused's prior conviction for another murder should be weighed in sentencing
  • What degree of planning and premeditation could be established on the facts
  • What non-parole period was appropriate, having regard to community protection and the accused's dangerousness

Decision

Kirby J determined that a determinate sentence, rather than a life sentence, was appropriate. The offence involved planning and cold-blooded execution of a harmless and generous elderly woman, placing it at the more serious end of the scale. However, the court found that the degree of planning, while present, was not as extensive as the Crown submitted, and the case did not reach the threshold of the worst category of murder.

The court compared the accused's criminality to that of a contract killer, but noted that sentences for such offenders vary considerably depending on the specific facts. The prior conviction for the Whelan murder was taken into account. In that case, Barr J had found a greater degree of persistence and planning than was present in the Davis murder, which distinguished the two offences for sentencing purposes.

The court acknowledged the profound and continuing anguish suffered by Mrs Davis's family, and received victim impact statements from family members, some of which were read aloud in court. Consistent with established authority, that material was considered within its proper limits. The court also acknowledged that murder is the most serious offence in the criminal calendar and that, absent extraordinary circumstances, it demands a substantial sentence to serve the purposes of punishment, denunciation, and general deterrence.

The sentence commenced from the date of the verdict rather than the date of sentence. The court was satisfied that the non-parole period of 21 years would provide adequate supervision if the accused were eventually released.

Orders Made

  • The accused sentenced to imprisonment for 28 years, commencing 17 September 2007 and concluding 16 September 2035
  • Non-parole period of 21 years fixed
  • Earliest eligible parole date: 17 September 2028

Key Takeaways

  • A prior conviction for a separate murder did not automatically produce a life sentence; the court conducted an individual assessment of the present offence against the "worst category" threshold before determining that a determinate term was appropriate.
  • The sentencing court found that financial motive, combined with the deliberate targeting of a vulnerable and trusting victim, placed the offending at the serious end of the murder scale, even where the degree of planning was less extensive than in comparable cases.
  • Where an accused's criminality is analogised to contract killing, the sentence is not fixed by that analogy alone; the particular facts of each case govern the outcome, and sentences for such offending vary widely.
  • Victim impact material from family members was received and considered, but the court applied the constraints established in R v Previtera (1997) 94 A Crim R 76, ensuring that material was not used beyond its proper sentencing function.
  • The commencement date of a sentence may, in appropriate circumstances, run from the date of verdict rather than the date of formal sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35
- Holyoak v R (1995) 82 A Crim R 502
- R v Varner (NSW CCA, 24 March 1992, unreported)
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Knight v R [2006] NSWCCA 292; 164 A Crim R 126
- R v Crofts (NSW SC, 6 December 1996, unreported)
- R v Smith [2000] NSWCCA 202
- R v King (1998) 99 A Crim R 288
- R v Lewis [2001] NSWCCA 448
- R v Baker (NSW CCA, 20 September 1995, unreported)
- R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465
- R v Burrell [2007] NSWCCA 79
- Burrell v R [2007] NSWCCA 65
- R v Burrell [2006] NSWSC 581
- R v Previtera (1997) 94 A Crim R 76