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Supreme Court 31 August 2012

R v DANNEVIG, Christopher James

[2012] NSWSC 1013

Sexual offencesHomicideFraud & dishonestyTheft & property
CRIME SENTENCING FOR OFFENCE OR MURDER PLEA OF GUILTY YOUNG OFFENDER PRINCIPLES OBJECTIVE SERIOUSNESS OF OFFENCE VICTIM BEFRIENDED ON

Citation: R v Dannevig, Christopher James [2012] NSWSC 1013
Court: Supreme Court of New South Wales
Date: 31 August 2012
Judge(s): Hall J

Background

The offender, a 21-year-old male, pleaded guilty to the murder of an 18-year-old woman committed on 12 May 2010. The victim had a keen interest in animal welfare and was studying a relevant TAFE course. The offender exploited that interest by befriending her on Facebook and later creating a fictitious identity posing as a WIRES (Wildlife Information Rescue and Education Service) field trainer.

Using this ruse over several weeks, the offender arranged a series of meetings with the victim on bush tracks near Leumeah, culminating in an invitation to an overnight "training camp" at Smith Creek Reserve. The victim believed she was being recruited for paid wildlife work. She went missing on 12 May 2010 and was later found deceased.

The offender had a prior conviction for detaining a person without consent and was on parole at the time of the murder. He also asked the court to take into account on a Form 1 two related offences: stealing the victim's purse and withdrawing $170 from her bank account using a PIN he had obtained from her by deception.

  • How the standard non-parole period of 20 years for murder interacts with the sentencing discretion, following the High Court's guidance in Muldrock v R
  • Whether the offence was pre-planned, and if so, to what degree that affected objective seriousness
  • How the offender's mild intellectual disability bore on culpability, prospects of rehabilitation, and the applicable sentencing principles for young offenders
  • Whether the offence's commission while the offender was on conditional liberty (parole), and his prior conviction for a serious personal violence offence, justified a non-parole period exceeding the standard
  • The weight to be given to the guilty plea as a mitigating factor

Decision

Hall J assessed the offence as falling in the upper range of objective seriousness for murder. The judge found that the offender had engaged in a sustained and sophisticated deception over several weeks, creating a false online identity to lure a vulnerable victim to a remote location. Although the court could not determine precisely when the intention to kill formed, the degree of planning and grooming was substantial and significantly aggravated the offence.

The court acknowledged that the offender had a mild intellectual disability, which was relevant to both culpability and rehabilitation. However, Hall J found that the disability did not prevent the offender from demonstrating a "somewhat sophisticated capacity" to employ a strategy to groom the victim. The young offender principles from cases such as R v AEM were considered, but their ameliorating effect was limited by the gravity of the conduct and the prior violent offending.

On the mitigating side, the court gave credit for the guilty plea, which was entered at an early stage. Hall J applied a 25 percent discount, reducing the undiscounted overall sentence of 36 years to 27 years. The court determined that the victim impact statement, submitted on behalf of the deceased's family, could not by law be used to increase the sentence, citing R v Previtera.

Hall J imposed a non-parole period of 21 years, one year longer than the standard 20-year non-parole period for murder. The court was required under s 54B(3) and (4) of the Crimes (Sentencing Procedure) Act 1999 to record expressly that this longer period was attributable to the offender's prior conviction for a serious personal violence offence and to the fact that the offence was committed while on conditional liberty.

Orders Made

  • The offender was convicted of the murder of Nona Belomesoff.
  • Sentenced to imprisonment with a non-parole period of 21 years, commencing 8 August 2011 and expiring 7 August 2032.
  • Balance of term of 7 years, commencing 6 August 2032 and expiring 5 August 2039.
  • Earliest parole eligibility date: 7 August 2032.
  • Form 1 offences (larceny and obtaining property by deception) taken into account.

Key Takeaways

  • Following Muldrock v R, the standard non-parole period of 20 years for murder is a legislative guidepost, not a starting point or a determinative figure, and does not directly apply where the offender has pleaded guilty.
  • A non-parole period exceeding the standard can be imposed where an offender has a prior conviction for a serious personal violence offence and committed the subject offence while on conditional liberty; the Crimes (Sentencing Procedure) Act 1999 (s 54B) requires the court to record the specific basis for any such departure.
  • Mild intellectual disability does not automatically reduce culpability proportionately where the offender nonetheless demonstrated a capacity to plan and execute a sophisticated course of conduct over an extended period.
  • Sustained online grooming involving a fictitious identity, exploitation of a vulnerable victim's interests, and the luring of that victim to a remote location collectively elevate the objective seriousness of a murder offence into the upper range.
  • Victim impact statements are admissible but cannot, as a matter of law, be used to increase a sentence, consistent with the principle affirmed in R v Previtera.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(1), 117, 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(2)(j), 33, 54B(3), 54B(4)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Previtera (1997) 94 A Crim R 76
- R v AEM & Ors [2002] NSWCCA 58
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313
- Fardon v Attorney General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575
- R v SLD [2003] NSWCCA 310; (2003) 58 NSWLR 589
- R v Hill (1981) 3 A Crim R 397
- R v Harrison (1997) 93 A Crim R 314
- R v Gordon (1994) 71 A Crim R 459
- R v Low (1991) 57 A Crim R 8
- R v Skura [2004] VSCA 53
- R v Kilmore (NSWCCA, 13 August 1998, unreported)
- R v MacDonald (NSWCCA, 12 December 1995, unreported)