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Supreme Court 12 June 2013

R v Ray

[2013] NSWSC 767

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER INTENT TO CAUSE GRIEVOUS BODILY HARM SAVAGE UNARMED ASSAULT SIGNIFICANT HISTORY OR VIOLENCE

Citation: R v Ray [2013] NSWSC 767
Court: Supreme Court of New South Wales
Date: 12 June 2013
Judge: R A Hulme J

Background

The offender, a 32-year-old man with an extensive criminal history, was convicted by a jury of the murder of a 37-year-old woman at The Entrance on 9 April 2011. The killing arose not from a planned or intentional homicide, but from a savage unarmed assault with fists and feet, carried out with the intention of inflicting really serious bodily harm. The offender had exploded in rage over relatively trivial matters at a time when the victim was particularly vulnerable.

The offender had been released on parole only two months before the killing, following a conviction for the brutal assault of another young woman. At the time of the offence he was also subject to an apprehended domestic violence order (ADVO). His criminal history stretched back to age 14 and included repeated offences of violence, particularly against women, as well as multiple breaches of ADVOs and parole conditions.

The matter came before Hulme J for sentencing following the jury's guilty verdict on 9 May 2013.

  • What is the appropriate sentence for a murder committed by an offender with an extensive history of violence, including prior assaults on women?
  • What weight should be given to the statutory standard non-parole period of 20 years for murder?
  • What are the applicable aggravating factors, including the commission of the offence while on parole and subject to an ADVO?
  • Whether special circumstances existed to justify a reduction in the non-parole period below the standard one-third balance of term.
  • Whether the offender should be warned about the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW).

Decision

Hulme J declined to impose a life sentence, accepting the Crown's concession that this case did not fall into the worst category of murder. The standard non-parole period of 20 years and the maximum penalty of life imprisonment nonetheless served as important reference points in calibrating the sentence.

The offender's criminal history was a dominant feature of the sentencing exercise. His record of violence dated from adolescence and included repeated assaults on intimate partners, multiple ADVO breaches, assaults on police and strangers, and parole revocations. His Honour found that protection of the community was a significant sentencing consideration in the circumstances.

The commission of the offence while on parole and while subject to an ADVO were identified as significant statutory aggravating factors. His Honour declined to find special circumstances warranting a reduction in the non-parole period and ordered the sentence to commence on 12 August 2011, after the offender had served out the balance of an earlier parole revocation period.

His Honour also delivered the mandatory warning under the Crimes (High Risk Offenders) Act 2006 (NSW), noting that the State may apply at the end of the sentence for a continuing detention order or extended supervision order, with the potential for further successive applications.

Orders Made

  • Convicted of murder.
  • Sentenced to a total term of imprisonment of 24 years, comprising a non-parole period of 18 years and a balance of term of 6 years.
  • Sentence to date from 12 August 2011.
  • Earliest eligibility for parole: 11 August 2029.

Key Takeaways

  • The Supreme Court imposed a total sentence of 24 years with an 18-year non-parole period for a murder involving an intentional savage assault, falling below the 20-year standard non-parole period on the particular facts.
  • Commission of a serious offence while on parole and subject to an ADVO constitutes significant statutory aggravation under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Where an offender has served part of their pre-sentence custody under a revoked parole order for an unrelated matter, the sentencing court retains a discretion as to the commencement date of the new sentence, with totality as the primary consideration.
  • An extensive, escalating history of violent offending, particularly against women, and repeated failures to comply with court orders, elevates community protection as a sentencing purpose.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to warn an offender convicted of a qualifying offence that the State may apply for continuing detention or extended supervision orders at the conclusion of the sentence, with successive applications available thereafter.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 44 (special circumstances) and provisions relating to the standard non-parole period for murder
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases cited: No specific cases were cited in the provided text.