AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 5 August 2013

R v Wade

[2013] NSWSC 1092

Sexual offencesHomicide
SENTENCE MURDER AND SEXUAL ASSAULT OF CHILD TOP OF THE RANGE OF MURDER LOW TO MEDIUM RISK OF RE OFFENDING SENTENCE RE

Citation: R v Wade [2013] NSWSC 1092
Court: Supreme Court of New South Wales
Date: 5 August 2013
Judge(s): Latham J

Background

The applicant was convicted after trial of the murder of a 22-month-old child, JC, on 13 August 1988. Justice Finlay imposed a life sentence on 20 September 1989, together with a concurrent 10-year term for the sexual assault of the same child. By the time of this application, the applicant had been in custody for 25 years.

The applicant was a shearer who had formed a relationship with the child's mother and occasionally babysat her children. The child had sustained unexplained bruising on multiple occasions in the months before her death. On the night of 13 August 1988, the mother returned home to find the child gravely injured; the child died approximately 90 minutes later. Post-mortem examination revealed severe blunt force trauma to the abdomen and recent injuries to the genital area consistent with sexual assault.

The applicant sought redetermination of his life sentence under the Crimes (Sentencing Procedure) Act 1999. He had filed an earlier application in 1996, which was withdrawn shortly before a scheduled hearing in 2001.

  • Whether the applicant was eligible to apply for redetermination of a pre-1990 life sentence under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the period already served was sufficient to reflect the objective gravity of the murder
  • What term of imprisonment and non-parole period should be substituted for the life sentence, having regard to the circumstances of the offence and the applicant's progress toward rehabilitation

Decision

Latham J described the offending as ranking towards the top of the range for murder. The victim was a very young child killed in her own home while in the applicant's care, having been sexually assaulted shortly before her death and physically assaulted on multiple prior occasions. The applicant continued to deny responsibility for the sexual assault and the pattern of prior physical abuse, meaning his expressed remorse was qualified.

Against those seriously aggravating factors, the court weighed the applicant's progress in custody. He had completed a treatment program in February 2012, participated actively, and had maintained a largely disciplinary-free record since 1996. Expert reports assessed his risk of re-offending as low to moderate for sexual re-offending and low overall. His immediate family offered accommodation and employment on release.

The court accepted that 25 years of actual custody was a significant period, but treated the central question as whether that period adequately reflected the objective gravity of the offence. Taking into account the nature and circumstances of the murder, the ongoing impact on the victim's family, and the applicant's rehabilitation progress, Latham J concluded that the sentence should be redetermined with a total term of 36 years and a non-parole period of 26 years, both running from the original date of custody. A finding of special circumstances was made to allow for an extended period of supervised conditional liberty following release.

Orders Made

  • Total term of imprisonment of 36 years, commencing 13 August 1988 and expiring 12 August 2024
  • Non-parole period of 26 years, commencing 13 August 1988 and expiring 12 August 2014
  • Special circumstances found, reflecting the need for an extended period of supervision on release
  • The earliest date for the applicant to be considered for release set at 13 August 2014

Key Takeaways

  • A redetermination application under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 requires the court to assess whether time already served adequately reflects the objective gravity of the original offence, not merely to recalibrate the sentence by reference to current sentencing patterns.
  • Murder involving the killing of a very young child in circumstances of sustained physical and sexual abuse ranks towards the top of the range for that offence, and the substituted sentence must reflect that gravity.
  • Qualified remorse, specifically where an offender acknowledges some conduct but continues to deny the full extent of the offending, weighs against the applicant on redetermination even after a long period in custody.
  • Completion of a relevant treatment program, a low assessed risk of re-offending, and demonstrated community support are factors that bear on the redetermination of a life sentence, even where the underlying offending is of the most serious kind.
  • A finding of special circumstances can be made in a redetermination context to ensure that the non-parole period is proportionate to the total term, allowing for a longer period of supervised release rather than an abrupt return to the community after many years in custody.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44 and Schedule 1
- Sentencing Act 1989 (NSW), s 13A
- Crimes Act 1900 (NSW)

Cases
- R v Rees NSWCCA, 22 September 1995 (unreported)