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Supreme Court 7 December 2012

R v Karen Dawson

[2012] NSWSC 1497

Homicide
CRIMINAL LAW MURDER WHERE OFFENDER CONVICTED BY JURY WHERE DEFENCE OF PROVOCATION REJECTED MENTAL ILLNESS OF OFFENDER EFFECT ON GENERAL DETERRENCE

Citation: R v Karen Dawson [2012] NSWSC 1497
Court: Supreme Court of New South Wales
Date: 7 December 2012
Judge(s): Bellew J

Background

The offender was convicted by a jury of murdering a 62-year-old man who had been her neighbour and friend at Red Range, a small village near Glen Innes in northern New South Wales. In the period leading up to the offence, the offender had made complaints to others that the deceased had sexually harassed her, attended her property uninvited, consumed her alcohol, and assaulted her young son. She also alleged, within weeks of the death, that the deceased had inappropriately touched one of her grandchildren.

The offender drove to Casino to enlist her son (Aquilina) in confronting the deceased. She was aware the confrontation could involve violence. She then drove Aquilina and a third man (Comber, who had pleaded guilty to murder before trial) back to Red Range, collected the deceased from a cycling trip, and left him in a shed area where she knew Aquilina and Comber were waiting. The deceased was beaten to death with an iron bar. The offender did not know Aquilina had the iron bar with him before the attack.

The Crown's case was that the offender participated in a joint criminal enterprise to assault the deceased, and that she contemplated the possibility that really serious bodily injury might be inflicted in the course of that agreement. The jury convicted her of murder on that basis. The question before Bellew J was the appropriate sentence.

  • Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999.
  • The correct sentencing methodology following Muldrock v R (2011) 244 CLR 120, including the role of the standard non-parole period.
  • The offender's degree of culpability within the joint enterprise, including whether she knew Aquilina was armed.
  • Whether provocation by the deceased could operate as a mitigating factor (the jury having rejected provocation as a defence).
  • The weight to be given to the offender's mental illness as a mitigating factor and its effect on general deterrence.

Decision

Bellew J was satisfied a life sentence was not warranted, consistent with the Crown's concession. Applying Muldrock, his Honour identified all relevant aggravating and mitigating factors and arrived at an appropriate sentence holistically, rather than treating the standard non-parole period of 20 years as a mechanical starting point.

On culpability, the court found the offender was the instigator of the confrontation and had transported both co-offenders to the scene. Critically, however, she did not know Aquilina possessed an iron bar and was not present during the fatal assault. Her role was at the lower end relative to the co-offenders, but she remained a knowing participant in an enterprise she understood could turn violent.

Provocation was considered as a mitigating factor even though the jury had rejected it as a complete defence. The court accepted that the deceased's conduct, including harassment and an alleged assault on her son, had genuinely hurt and offended the offender. It was not satisfied, however, that the alleged interference with the grandchild was established for sentencing purposes, given the offender did not give evidence. The court also emphasised that the offender's response was wholly disproportionate, and that other courses of action were available to her, including leaving the area, which evidence suggested she had already contemplated.

The offender's mental health history was accepted as a mitigating factor going to moral culpability and reducing the weight to be given to general deterrence. Taking all factors together, his Honour imposed a total term of 23 years imprisonment with a non-parole period of 17 years and 3 months, set below the 20-year standard non-parole period to reflect the mitigating circumstances.

Orders Made

  • The offender was convicted of the murder of Adrian John Trevett.
  • Non-parole period of 17 years and 3 months imprisonment, commencing 30 December 2010 and ending 29 March 2028.
  • Additional term of 5 years and 9 months, commencing 30 March 2028 and ending 29 December 2033.
  • Total sentence: 23 years imprisonment.
  • Eligible for parole: 30 March 2028.

Key Takeaways

  • Provocation rejected by a jury as a complete defence can still operate as a mitigating factor at sentencing, provided the court is satisfied on the balance of probabilities that the deceased's conduct was capable of provoking the offender.
  • Under the Muldrock methodology, the standard non-parole period of 20 years for murder is a reference point, not a starting figure; the sentencing court must weigh all aggravating and mitigating factors holistically before fixing the non-parole period.
  • A participant in a joint criminal enterprise who did not deliver the fatal blows, and who was unaware that a co-offender was armed, may still bear significant moral culpability where she instigated and facilitated the confrontation knowing violence was likely.
  • Mental illness accepted as a mitigating factor bearing on moral culpability can reduce the weight attributed to general deterrence in the sentencing exercise.
  • Relationship tension and complaints about a deceased's conduct will not automatically constitute provocation in mitigation; the court must be satisfied the offender genuinely experienced the conduct complained of and that the response was not wholly disproportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18 (murder), s 19A (maximum penalty of life imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B(2), 54B(3), 61(1)

Cases:
- Muldrock v R (2011) 244 CLR 120
- Markarian v R (2005) 228 CLR 357
- R v Isaacs (1997) 41 NSWLR 374
- R v Previtera (1997) 94 A Crim R 76
- Shaw v R [2008] NSWCCA 58
- R v Buddle [2005] NSWCCA 82
- Knight v R [2006] NSWCCA 292
- Versluys v R [2008] NSWCCA 76
- R v Dodd (1991) 57 A Crim R 349
- R v Matthews [2004] NSWCCA 112
- R v GWM [2012] NSWCCA 240
- R v Sharrouf [2009] NSWSC 1002
- R v Dong [2010] NSWSC 1242
- R v Goundar [2010] NSWSC 1170
- R v Yeo [2003] NSWSC 31