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Supreme Court 14 December 2012

R v White

[2012] NSWSC 1573

Assault & violenceHomicideDrugs
CRIMINAL LAW SENTENCE MURDER CONVICTED AFTER TRIAL KILLING OCCURRED DURING DRUG ROBBERY PREMEDITATION NOT ESTABLISHED

Citation: R v White [2012] NSWSC 1573
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge: R A Hulme J

Background

The offender was convicted by jury of the murder of a drug dealer after a seven-week trial in Lismore. The Crown's case was that the offender lured the deceased to a caravan park cabin under the pretence of a drug deal, subjected him to a severe assault, and then bound and gagged him with cable ties and tape so that, if not already dead from the beating, he would suffocate.

The offender had enlisted others to assist. After the killing, he oversaw the retrieval of drugs from the deceased's car, which was then torched. The body was transported to a national park, stripped naked, doused in fuel to eliminate DNA evidence, and pushed off a cliff. The deceased's remains, amounting to twelve bones, were not located until a year after the murder.

The offender was tried jointly with two co-accused. His girlfriend was convicted of being an accessory before the fact to robbery. Another man, Todd Serone, was convicted of being an accessory after the fact to murder. A fourth participant, Ricky Humphries, had earlier pleaded guilty to manslaughter.

  • What non-parole period and head sentence were appropriate for the murder conviction?
  • Was there an intention to kill, as distinct from an intention to cause grievous bodily harm?
  • Was the killing premeditated, separate from the planned robbery?
  • What weight should be given to the offender's personal circumstances, criminal history, and degree of co-operation at trial?
  • Did the manner in which the body was disposed of constitute an aggravating feature?

Decision

Hulme J found that the offender had an intention to kill. Once the deceased was rendered unconscious, he was bound and gagged so that death by suffocation would follow if the bashing alone had not already caused death. The planned purchase of cable ties and tape the previous afternoon, at the offender's direction, supported this conclusion.

Whether the killing itself (as distinct from the robbery) was premeditated was more difficult. The judge considered it might have been, but could not make that finding to the criminal standard of proof. The robbery, however, was plainly planned: the offender and his girlfriend were preparing to move interstate and intended to fund that move with the stolen drugs.

The disposal of the body was treated as a separate aggravating feature. The deliberate steps taken to destroy evidence, including stripping the body, applying fuel, and pushing it off a cliff, reflected a calculated effort to evade detection and compounded the indignity suffered by the deceased. The judge noted that the victim's status as a drug dealer did not diminish the seriousness of the offence or reduce the weight of sentencing purposes such as punishment, deterrence, and denunciation.

The offender's criminal history across three states, spanning 1994 to 2002 and including convictions for assault and weapons offences, denied him leniency that might otherwise have been available. The judge was not persuaded of genuine remorse, characterising the offender's attitude as self-pity rather than contrition. Some limited credit was given for the manner in which the trial was conducted, as the defence had conceded that a manslaughter verdict was open. The sentence was back-dated to the date of arrest on 4 September 2009.

Orders Made

  • Convicted of murder.
  • Sentenced to imprisonment with a non-parole period of 24 years and a balance of term of 8 years (total sentence: 32 years).
  • Sentence to date from 4 September 2009.
  • Eligible for parole from 3 September 2033.
  • Total sentence to expire 3 September 2041.

Key Takeaways

  • The Supreme Court found an intention to kill was established beyond reasonable doubt by the deliberate act of binding and gagging an unconscious victim, ensuring death would follow even if the assault had not already caused it.
  • Premeditation of the killing, as distinct from premeditation of the robbery, could not be established to the criminal standard on these facts, and the court declined to make that finding.
  • Aggravating features extended beyond the act of killing itself: the multi-stage disposal of the body, including the use of accelerant and the removal of restraints to destroy DNA evidence, was treated as a distinct and serious aggravating circumstance.
  • A victim's involvement in criminal activity, including drug dealing, does not diminish the gravity of their murder or reduce the weight given to the standard purposes of sentencing.
  • Sentencing credit for co-operation at trial remains available where the defence concedes a lesser verdict is open, even where the offender is ultimately convicted of the more serious charge.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1900 (NSW), including s 3A (purposes of sentencing) and the standard non-parole period provisions for murder (20 years)

Cases:
- R v Humphries [2012] NSWSC 419
- R v Serone [2012] NSWSC 1232