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Supreme Court 13 December 2013

R v Stenberg

[2013] NSWSC 1858

HomicideFirearms & weapons
CRIMINAL LAW SENTENCE MURDER GUILTY PLEA MUTILATION NATURE AND SERIOUSNESS OF OFFENCE

Citation: R v Stenberg [2013] NSWSC 1858
Court: Supreme Court of New South Wales
Date: 13 December 2013
Judge(s): Schmidt J

Background

The offender pleaded guilty to the murder of Edward James Kelly, committed on 17 or 18 June 2012 at Broadwater in the Northern Rivers region of New South Wales. The offender travelled to the victim's home at night carrying a loaded firearm and shot the victim in the head with intent to kill. Following the killing, he decapitated the victim, attempted to set the home alight to destroy evidence, and disposed of the victim's head, which was never recovered.

The offender was arrested in the Northern Territory on 1 July 2012 and entered his guilty plea on arraignment before the Supreme Court on 6 September 2013. The plea was entered at a relatively late stage of proceedings.

At sentence, the parties agreed on the essential facts. Two forensic psychiatrists provided reports: Professor David Greenberg for the Crown and Dr Olav Nielssen for the offender. They agreed the offender suffered from a mental condition but disagreed on its precise nature and the extent of its contribution to the offending. Neither psychiatrist was called for cross-examination.

  • Where in the range of objective seriousness the offence fell, and whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999
  • The weight to be given to aggravating factors, including premeditation, post-death mutilation, and destruction of evidence
  • Whether the offender's mental condition reduced his moral culpability and diminished the relevance of general and specific deterrence
  • The extent of any discount for the guilty plea, given its timing
  • Whether the evidence established genuine remorse capable of being taken into account as mitigation
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • The appropriate sentence by reference to the standard non-parole period and comparable cases

Decision

Schmidt J concluded that the offence fell above the mid-range of objective seriousness. The Crown did not seek a life sentence, and the Court was satisfied that this was not a case requiring one. The killing was nonetheless found to be premeditated: the offender deliberately armed himself and travelled to the victim's home at night with intent to kill. The post-death conduct, including decapitation, the attempted arson, and the disposal of the victim's head, constituted significant aggravating factors.

The Court accepted that the offender suffered from depression and anxiety at the time of the offence, which were relevant to his moral culpability. However, the Court preferred the opinions of Professor Greenberg over those of Dr Nielssen on the extent of the mental condition's contribution to the offending. The conditions were found to be neither severe nor debilitating, and their mitigating weight was limited accordingly. The offender's consumption of alcohol prior to the murder did not operate as mitigation, given that he retained sufficient clarity of thought to take deliberate steps to destroy evidence and, notably, to release a caged bird before attempting to start the fire.

On remorse, the Court found that the evidence did not establish genuine remorse capable of being given mitigating weight. The offender did not give evidence at the sentencing hearing. The Court took into account his limited criminal history and his guilty plea as mitigating factors. An 18 percent discount was applied to reflect the guilty plea, the timing of which was assessed as reducing but not eliminating the utilitarian value of the plea. No special circumstances were found to warrant a departure from the statutory ratio between the non-parole period and the balance of term.

Without the discount, Schmidt J would have imposed a sentence of 31 years. After applying the 18 percent reduction, the total term was set at 25 years and 5 months, with a non-parole period of 19 years.

Orders Made

  • The offender was convicted of the murder of Edward James Kelly.
  • Sentenced to imprisonment with a non-parole period of 19 years, commencing 1 July 2012 and expiring 30 June 2031.
  • Balance of term set at 6 years and 4 months, commencing 1 July 2031 and expiring 31 October 2037.
  • Earliest eligible date for release on parole: 30 June 2031.
  • Sentence expiry date: 31 October 2037.

Key Takeaways

  • Post-death mutilation of a victim, deliberate destruction of evidence, and disposal of a victim's remains can each constitute significant aggravating factors in a murder sentence, capable of placing the offence above the mid-range of objective seriousness.
  • Where an offender's mental condition at the time of offending is found to be neither severe nor debilitating, its mitigating weight in sentencing is limited, even where both parties' experts agree a condition existed.
  • Voluntary intoxication will not mitigate the seriousness of an offence where the offender retained sufficient cognitive capacity to take deliberate and considered steps, such as destroying evidence or making other purposeful decisions at the scene.
  • A guilty plea entered at arraignment attracts a discount, but the utilitarian value of the plea, and therefore the size of the reduction, is affected by its timing relative to the overall proceedings. Here, an 18 percent discount was applied.
  • Under the Crimes (High Risk Offenders) Act 2006, the State retains the power to apply to the Supreme Court for extended supervision or continued detention of a person convicted of murder, including after the sentence expiry date, if that person would pose an unacceptable risk of committing a serious violence offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 44(2), 54A, 54B, 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5E, 5F, 5G
- Evidence Act 1995 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- GAS v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Cameron v R [2002] HCA 6; (2002) 209 CLR 339
- R v Dodd (1991) 57 A Crim R 349
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
- R v GWM [2012] NSWCCA 240
- Iskander v R [2013] NSWCCA 235
- R v Engert (1996) 84 A Crim R 67
- R v Israil [2002] NSWCCA 255
- Butters v R [2010] NSWCCA 1
- Apps v R [2006] NSWCCA 290
- Cole v R [2010] NSWCCA 227
- Knight v R [2006] NSWCCA 292
- Munro v R [2006] NSWCCA 350
- R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380
- R v Hooper [2004] NSWCCA 10