AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 19 September 2013

R v Bretherton

[2013] NSWSC 1339

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER SINGLE ISSUE TRIAL CRIMES ACT 1900 S 23A

Citation: R v Bretherton [2013] NSWSC 1339
Court: Supreme Court of New South Wales
Date: 19 September 2013
Judge: Harrison J

Background

The offender was convicted of murder following a two-week trial in Newcastle. He had killed his former partner during a domestic dispute at a property they jointly owned, stabbing her twelve times. She died from her wounds at the scene.

The offender had earlier offered a plea of guilty to manslaughter, which the Crown rejected. At trial, the key issue was whether the offender had been substantially impaired by an abnormality of mind arising from an underlying condition at the time of the killing, which would have reduced his liability from murder to manslaughter under s 23A of the Crimes Act 1900. The jury rejected that partial defence and returned a verdict of murder.

The matter before Harrison J at the sentencing hearing concerned the appropriate penalty, including the weight to be given to the offender's mental state despite the jury's verdict.

  • What is the correct sentencing methodology for murder following Muldrock v R, in particular the role of the standard non-parole period of 20 years?
  • Whether the sentencing judge could still find that the offender's abnormality of mind was a mitigating factor, notwithstanding the jury's rejection of the partial defence of substantial impairment.
  • What weight should be given to the Crown's refusal to accept an early plea of guilty to manslaughter when that plea reflected the same factual and psychiatric basis as the partial defence raised at trial?

Decision

Harrison J sentenced the offender using the holistic approach required by Muldrock v R, identifying all relevant aggravating and mitigating factors rather than commencing with the standard non-parole period as a fixed benchmark. The standard non-parole period of 20 years represented a reference point for a hypothetical mid-range offence, to be considered alongside all individual circumstances of the case.

The objective seriousness of the offence was significant. The deceased suffered twelve stab wounds, including wounds to her back, torso and face, and defensive injuries consistent with a prolonged and violent struggle. Harrison J accepted that the relationship had a history of jealousy and physical violence, and that property settlement disputes were an immediate source of tension, but found no clear precipitating event for the fatal attack.

On the central sentencing question, Harrison J found that the jury's rejection of the substantial impairment defence did not preclude a finding, for sentencing purposes, that the offender was suffering from an abnormality of mind that partially reduced his culpability. Drawing on psychiatric evidence from both sides, his Honour concluded that, but for that abnormality of mind, the stabbing was unlikely to have occurred. This finding, consistent with the approach endorsed in R v Cheatham, meant that some allowance for mental impairment was built into the sentence even though the partial defence had failed.

His Honour also took into account the Crown's refusal to accept the early plea to manslaughter. Because that offer was consistent with the psychiatric evidence ultimately accepted as relevant at sentencing, the refusal affected how much credit could be attributed to the late guilty plea, and was a factor in the overall sentencing exercise.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to imprisonment for 21 years, with a non-parole period of 15 years and 9 months.
  • Sentence commenced 16 November 2011; non-parole period expires 15 August 2027.
  • Balance of term: 5 years and 3 months, expiring 15 November 2032.
  • First eligible for parole: 16 August 2027.

Key Takeaways

  • A jury's rejection of a partial defence of substantial impairment under s 23A of the Crimes Act 1900 does not prevent a sentencing judge from finding that the offender suffered some degree of mental impairment relevant to culpability, provided the evidence supports that finding.
  • Under the Muldrock v R framework, the standard non-parole period for murder (20 years) operates as a reference point for a mid-range offence, not a starting point; all relevant aggravating and mitigating factors are identified and weighed holistically.
  • Where psychiatric evidence establishes that an offender's abnormality of mind was causally connected to the offending, that connection can reduce assessed moral culpability even where the impairment falls short of the threshold required by the partial defence.
  • The Crown's refusal to accept an early plea of guilty to a lesser charge is a relevant factor in sentencing, particularly where the factual and evidentiary basis for that plea was borne out at trial and at the sentencing hearing.
  • Sufficient evidence of a history of jealousy, controlling behaviour, and prior physical violence within the relationship was present on the facts, but the judgment did not treat this history as eliminating the weight given to the offender's mental state.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B(3), 55B(2)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Cheatham [2002] NSWCCA 360
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Champion (1992) 64 A Crim R 244
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Isaacs (1997) 41 NSWLR 374
- R v Kristi Anne Abrahams [2013] NSWSC 952
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Toki [2003] NSWCCA 125