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Supreme Court 20 July 2012

R v WILLMOTT

[2012] NSWSC 824

Assault & violenceHomicide
CRIMINAL LAW SENTENCING MURDER GUILTY PLEA LIMITED PROVOCATION SERIOUSNESS OF OFFENCE OF A HIGH ORDER

Citation: R v Willmott [2012] NSWSC 824
Court: Supreme Court of New South Wales
Date: 20 July 2012
Judge: Price J

Background

The offender pleaded guilty to the murder of Shane Curphey, committed on 13 October 2010 at a caravan park on the NSW Central Coast. The offender and the deceased had been drinking heavily throughout the day with mutual acquaintances. After being asked to leave a friend's cabin following an incident involving offensive remarks, the offender returned to his mother's caravan, armed himself with two knives, and went back out looking for the deceased.

The offender and the deceased encountered each other on a public footpath. A heated verbal confrontation followed, during which the deceased taunted the offender aggressively. The offender then inflicted numerous stab wounds, predominantly to the deceased's neck and left chest. The deceased, aged 35, died as a result of those wounds.

At the time of the murder, the offender was on parole for prior offences. He had a history of personal violence offences and was heavily affected by alcohol at the time of the killing.

  • What sentence was appropriate for murder, having regard to the standard non-parole period of 20 years and the objective and subjective features of the offence?
  • What weight should be given to the partial defence of provocation in mitigation?
  • What discount applied for the utilitarian value of the guilty plea?
  • Whether the offender's psychiatric conditions and custodial circumstances warranted mitigation or a finding of special circumstances justifying a longer parole period.
  • Whether the sentence should commence from the date of the offence, and the consequences of the murder having been committed while the offender was on parole.

Decision

Price J assessed the objective seriousness of the offence as being of a high order. The offender had armed himself with knives, walked out of his mother's caravan seeking a confrontation, and stabbed the deceased multiple times in a public area where children and members of the community were present. The Crown conceded a degree of limited provocation arising from the deceased's aggressive taunting and his physical approach immediately before the attack, and his Honour treated this as a mitigating factor, though a limited one.

The offender's significant criminal history, including prior convictions for personal violence offences, counted as an aggravating factor. The fact that the murder was committed while the offender was on parole was an additional statutory aggravating circumstance. Heavy intoxication and illicit drug use did not operate in mitigation; rather, the court noted the offender's voluntary consumption of alcohol as a contributing factor without reducing his culpability.

The offender received a 10 percent utilitarian discount on his sentence for the guilty plea, consistent with the plea being entered at a relatively late stage. His Honour declined to find special circumstances that would justify extending the balance of the term beyond one-third of the non-parole period. The court was not satisfied that the offender's psychiatric conditions, or his placement in maximum security, rendered his imprisonment more burdensome than that of the general prison population.

The sentence was ordered to commence on 13 October 2010, the date of the offence, rather than on the expiry of the parole term he had been serving. His Honour took into account the total period of imprisonment already served, applying the principle in Mill v The Queen, while also noting that the commission of the murder on parole was a circumstance of aggravation.

Orders Made

  • The offender was convicted of the murder of Shane Curphey.
  • Sentenced to imprisonment with a non-parole period of 21 years, commencing 13 October 2010 and expiring 12 October 2031.
  • Balance of term of 7 years, commencing 13 October 2031 and expiring 12 October 2038.
  • Earliest eligibility for release to parole: 12 October 2031.

Key Takeaways

  • Murder committed while the offender was on parole constitutes a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 and weighs materially against the offender in sentencing.
  • Limited provocation, where conceded by the Crown, can operate in mitigation of a murder sentence, but its weight depends on the degree and nature of the provocative conduct; in this case, its mitigating effect was modest.
  • A utilitarian discount for a guilty plea applies even where a standard non-parole period has been prescribed, though the standard non-parole period under Muldrock is neither a starting point nor determinative; it functions as one of two legislative guideposts.
  • Where a sentence commences from the date of the offence rather than the expiry of a prior parole term, the court must take into account the total period of imprisonment served, consistent with Mill v The Queen.
  • Psychiatric conditions and maximum-security classification do not automatically attract mitigation or a finding of special circumstances; evidence must demonstrate that imprisonment is materially more burdensome for the offender concerned.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A(2), 19A(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 21A(2)(d), 21A(3)(b), 21A(3)(c), 21A(3)(i), 21A(6), 61(1)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) NSWLR 566
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Fernando [2002] NSWCCA 28
- R v Previtera (1997) 94 A Crim R 76
- R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Yang v R [2012] NSWCCA 49
- R v Koloamatangi [2011] NSWCCA 288
- Stanford v R [2007] NSWCCA 73