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Supreme Court 23 May 2008

R v Terry Mark DONAI

[2008] NSWSC 502

Homicide
CRIMINAL LAW SENTENCE MURDER WHETHER LIFE SENTENCE SHOULD BE IMPOSED WHETHER OFFENCE WITHIN WORST CATEGORY FUTURE DANGEROUSNESS

Citation: R v Terry Mark Donai [2008] NSWSC 502
Court: Supreme Court of New South Wales
Date: 23 May 2008
Judge(s): Fullerton J

Background

The offender was convicted by jury on 15 October 2007 of the murders of Pamela and William Weightman, committed on 8 January 2000. The victims were killed in their home at Glen Alpine and their bodies were transported to Heathcote National Park, where their car was pushed over an embankment to simulate a road accident. The deception was initially successful: a forensic pathologist attributed both deaths to a motor vehicle accident, and no inquest was held.

A second police investigation commenced in June 2001 following community rumours. Re-examination of the forensic evidence by two independent pathologists concluded that both victims died by asphyxiation, not from the vehicle accident. The pattern of bruising, including a fractured hyoid bone in Mr Weightman, was consistent with asphyxiating force applied with resistance.

The murders were connected to a scheme to secure the Weightmans' substantial estate. Their adopted son, David Weightman, the sole beneficiary under their wills, was separately convicted and sentenced to 28 years for the same murders. The present offender denied any involvement throughout the investigation, including during a police interview in 2002, and his denials were characterised by the sentencing judge as skilled and deliberate deception.

  • Whether the offences fell within the worst category of murder, warranting the imposition of a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the offender's future dangerousness to the community independently justified a life sentence
  • What weight should be given to objective seriousness, retribution, deterrence, and rehabilitation in the sentencing exercise
  • Whether the treatment of the victims' bodies after their deaths was a factor relevant to objective seriousness

Decision

Fullerton J found the offending to be very close to the worst category of murder cases. The murders were premeditated, involved the killing of two people, and were motivated entirely by greed, specifically the prospect of financial reward through the offender's association with the plan to secure the Weightmans' estate. The post-death concealment of the murders, including the deliberate staging of a car accident, was treated as relevant to the objective seriousness of the offending.

On the question of future dangerousness, Fullerton J declined to make a positive finding. There was no expert psychological or psychiatric evidence that addressed the offender's propensity for future violence, particularly in light of the undercover police operation conducted during the investigation. Her Honour expressed some disquiet at this conclusion but held that the Crown had not discharged its obligation to establish, by evidence, that the risk to the community was both real and measurable.

Despite the absence of a future dangerousness finding, Fullerton J was satisfied that life sentences were required having regard to the overall criminality of the offending. Retribution and general deterrence were given significant weight: the community was entitled to a sentence that reflected the senseless killing of two people for financial gain. Rehabilitation was not a factor capable of being weighed in the offender's favour, as there was no evidence of any insight into or remorse for the offending.

The Court concluded that no lesser sentence was available in the exercise of discretion, and imposed concurrent life sentences on both murder charges.

Orders Made

  • The offender was sentenced to concurrent terms of imprisonment for life on each of the two charges of murder, each sentence to date from 16 June 2006.

Key Takeaways

  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, a life sentence for murder does not require proof of future dangerousness where the objective criminality of the offending, considered alongside the statutory criteria, otherwise justifies it.
  • Premeditation, a double killing, and a purely mercenary motive collectively placed this offending very close to the worst category of murder, even without a formal finding that the case was the absolute worst case.
  • The treatment of victims' bodies after death, even where no separate verdict is entered on an accessory charge, is a matter the sentencing court may consider when assessing objective seriousness.
  • Where the Crown seeks a life sentence on grounds of future dangerousness, the burden falls on the Crown to establish by evidence that the risk is both real and measurable; speculation is insufficient.
  • An absence of evidence regarding rehabilitation and remorse means that those matters cannot be weighed in an offender's favour at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)

Cases:
- Attorney General for NSW v Nationwide News Pty Limited Anor [2007] NSWCCA 307
- Burrell v R [2007] NSWCCA 65
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- Knight v R [2006] NSWCCA 292; 164 A Crim R 126
- R v Benitez [2006] NSWCCA 21; 160 A Crim R 166
- R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported)
- R v Donai (Supreme Court of NSW, 2 October 2007, unreported)
- R v Engert (1995) 84 A Crim R 67
- R v Isaacs (1997) 41 NSWLR 374
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
- R v Mrish (Hidden J, Supreme Court of NSW, 13 December 1996, unreported)
- R v SLD [2003] NSWCCA 310; 58 NSWLR 589
- R v Willard [2005] NSWSC 402
- R v Yeo [2003] NSWSC 315
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270