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Supreme Court 14 September 2012

R v DONAI, Terry Mark

[2012] NSWSC 1102

HomicideFraud & dishonesty
CRIMINAL LAW SENTENCE OFFENCES PREMEDITATED FOR FINANCIAL GAIN

Citation: R v Donai [2012] NSWSC 1102
Court: Supreme Court of New South Wales
Date: 14 September 2012
Judge: Hidden J

Background

The offender was convicted at trial of two counts of murder, having killed a married couple at their home in Glen Alpine on 8 January 2000. The victims were the adoptive parents of the offender's acquaintance, David Weightman. The prosecution case was that the offender agreed to kill the couple in exchange for $17,000, to be funded from the estate David Weightman expected to inherit.

The killings were carried out by asphyxiation. The offender suffocated the wife in her upstairs bedroom before enlisting David Weightman's physical assistance to subdue and kill the husband in the lounge room below. The bodies were then staged to resemble a car accident.

These proceedings were a retrial. The offender had been convicted and sentenced to life imprisonment after an earlier trial in 2007, but the Court of Criminal Appeal set aside those convictions and ordered a new trial. Following the retrial before Hidden J, the offender was again found guilty, and the present judgment records the remarks on sentence.

  • What weight should be given to disputed facts relevant to sentencing, where the jury's verdict does not resolve every element of the offender's conduct?
  • What sentences are appropriate for two premeditated, contract-style murders committed for financial gain, having regard to the offender's subjective circumstances?
  • Whether the standard non-parole period for murder applied to offences committed before its introduction.
  • Whether special circumstances existed to justify departing from the statutory proportion between head sentence and non-parole period.

Decision

Hidden J found the murders to be of exceptional gravity. They were premeditated, planned in detail, and carried out for financial reward. The degree of organisation involved, including the plan to sedate the victims, the method of killing, and the staging of a fake accident, demonstrated significant planning and calculation. The offender was the driving force behind the scheme.

On disputed facts, the court did not need to resolve whether the victims were actually drugged, because the undisputed evidence of the physical killings was sufficient to characterise the offender's criminality at the highest level. The post-mortem finding of possible manual strangulation, alongside suffocation evidence, was treated as making no material difference to culpability given the circumstances already established.

The offender's subjective case was considered carefully. He had no prior convictions for violence, maintained a good employment record, and was described by family members and associates as a caring father and compassionate person. The court also took into account a history of serious childhood sexual abuse by a teacher and a Catholic priest, which had caused lasting psychological harm including PTSD and depression. These matters, while significant, could not substantially reduce the weight of objective seriousness for two deliberate, contract killings.

The court declined to find special circumstances warranting a departure from the statutory non-parole period proportion. Given the length of sentences required by the gravity of the offending, accumulation of the sentences was appropriate, though not to the full extent.

Orders Made

  • For the murder of Pamela Weightman: imprisonment for 40 years, commencing 16 June 2006 and expiring 15 June 2046, with a non-parole period of 30 years expiring 15 June 2036.
  • For the murder of William Weightman: imprisonment for 40 years, commencing 16 June 2009 and expiring 15 June 2049, with a non-parole period of 30 years expiring 15 June 2039.
  • Aggregate sentence: 43 years, with an effective non-parole period of 33 years from 16 June 2006.
  • Earliest parole eligibility: 15 June 2039.
  • Aggregate sentence expiry: 15 June 2049.

Key Takeaways

  • Premeditation and financial motive placed these murders at the highest level of objective seriousness, warranting substantial accumulation of sentences even where the offences arose from the same criminal episode.
  • A history of childhood sexual abuse and resultant psychiatric conditions (including PTSD and depression) constituted genuine mitigating factors, but could not meaningfully reduce sentences for offending of this exceptional gravity.
  • The standard non-parole period for murder, introduced after 2000, had no application to offences committed before its commencement, consistent with the general principle against retrospective application of sentencing provisions.
  • No special circumstances were found to justify departing from the statutory proportion between sentence and non-parole period, particularly where the required head sentences were already of very great length.
  • Where a jury's verdict does not resolve all factual disputes relevant to sentencing, the sentencing judge must make independent factual findings from the evidence adduced at trial, rather than treating the verdict as determinative of every contested matter.

Legislation and Cases Referenced

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

Cases:
- R v Weightman [2005] NSWSC 1354 (sentencing of the co-offender, David Weightman)
- Donai v R [2011] NSWCCA 173 (Court of Criminal Appeal decision setting aside original convictions and ordering retrial)
- R v Donai [2008] NSWSC 502 (sentencing remarks after the first trial by Fullerton J)