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Supreme Court 21 June 2013

R v Sean Lee King

[2013] NSWSC 801

HomicideDrugsDomestic & family violence
MURDER INTOXICATION

Citation: R v Sean Lee King [2013] NSWSC 801
Court: Supreme Court of New South Wales
Date: 21 June 2013
Judge: Bellew J

Background

A 25-year-old offender was tried for the murder of his 18-year-old partner, with whom he had been in a volatile domestic relationship since 2009. On 10 July 2010, the offender smoked crystal methamphetamine ("ice") and consumed alcohol over the course of the afternoon and evening before killing the deceased at her Ultimo apartment. The offender pleaded guilty to manslaughter at arraignment, but the Crown declined to accept that plea, and the matter proceeded to a jury trial.

On 29 April 2013, the jury returned a verdict of guilty of murder. The sole issue at trial had been whether the offender's intoxication prevented him from forming the requisite intention to kill or cause grievous bodily harm. The jury was satisfied beyond reasonable doubt that, despite his intoxication, the offender had formed such an intention.

Two further matters arising from a separate incident in April 2010 were also before the court for sentencing: a charge of recklessly inflicting grievous bodily harm on one person, and a charge of assault occasioning actual bodily harm on another. The offender had pleaded guilty to both in the Local Court; an exemption was granted to allow those matters to be dealt with in the Supreme Court alongside the murder sentence.

  • Whether the offender's intoxication from ice and alcohol should be treated as an aggravating or mitigating factor in sentencing for murder
  • How the history of domestic violence within the relationship bore on the objective seriousness of the offence
  • Whether the offender's release on conditional liberty (parole) only three months before the murder was an aggravating circumstance
  • How to approach the standard non-parole period for murder following the High Court's decision in Muldrock v R
  • What weight to give to the offender's expressed remorse, rehabilitation prospects, and conduct at trial
  • How to fix a commencement date for the sentence given the complexity of pre-sentence custody

Decision

Bellew J applied the sentencing framework confirmed by the High Court in Muldrock v R (2011) 244 CLR 120, treating the 20-year standard non-parole period as a "guidepost" rather than a starting point. The court identified all relevant aggravating and mitigating factors before arriving at the appropriate sentence in the round, rather than mechanically measuring the offence against a mid-range benchmark.

The offender's use of ice was treated as an aggravating factor rather than a mitigating one. The court found that the offender had been aware for some time of the link between his drug use and increased aggression and violence, yet chose to continue using. His intoxication was therefore self-induced with foreseeable consequences, which increased rather than diminished his culpability.

The offence was further aggravated by the pattern of prior domestic violence against the deceased, by the fact that the offender was on conditional liberty (having been released on parole only approximately three months before the murder), and by the two additional offences of violence committed in 2010. In partial mitigation, the court accepted that the offender's remorse appeared genuine, noted that his prospects of rehabilitation were dependent on sustained engagement with drug treatment, and recognised that his conduct at trial reflected a willingness to facilitate the course of justice.

On the question of backdating, the court exercised its discretion to commence the murder sentence from 1 April 2013, while backdating the sentences for the 2010 offences to 1 October 2011 to reflect pre-sentence custody that was partly referable to those matters. The court also warned the offender of the potential application of the Crimes (High Risk Offenders) Act 2006, which applies to murder convictions and may allow for continued detention or supervision even after a sentence is served.

Orders Made

  • Assault occasioning actual bodily harm (Lasaqa): Fixed term of 9 months imprisonment, commencing 1 October 2011 and ending 30 June 2012.
  • Recklessly inflicting grievous bodily harm (Lindsay): Fixed term of 2 years and 6 months imprisonment, commencing 1 April 2012 and ending 30 September 2014.
  • Murder: Non-parole period of 24 years, commencing 1 April 2013 and ending 31 March 2037; balance of term of 8 years, commencing 1 April 2037 and ending 31 March 2045.
  • Total term of imprisonment: 33 years and 6 months.
  • Total non-parole period: 25 years and 6 months.
  • Earliest parole eligibility: 1 April 2037.
  • Sentence expiry: 31 March 2045.

Key Takeaways

  • Under the Muldrock framework, a sentencing court does not commence by asking whether there are reasons to depart from the standard non-parole period; instead, it identifies all relevant factors and determines the appropriate sentence holistically, with the standard non-parole period serving as one reference point.
  • Self-induced intoxication from ice can be treated as an aggravating factor in sentencing where the offender knew beforehand that drug use heightened their propensity for violence, yet continued using regardless.
  • A history of domestic violence against the deceased within an intimate relationship forms part of the context that bears on the objective seriousness of a murder committed in that relationship.
  • Offending while on conditional liberty (parole) constitutes an aggravating circumstance in sentencing, reflecting the breach of trust inherent in such conduct.
  • The Crimes (High Risk Offenders) Act 2006 applies to murder convictions, and a sentencing court is required to warn the offender that extended detention or supervision may be sought even after the custodial sentence has been completed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 35(2), 59(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 61(1)
- Criminal Procedure Act 1986 (NSW), s 128(2)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Muldrock v R (2011) 244 CLR 120
- Markarian v R (2005) 228 CLR 357
- Callaghan v R (2006) 160 A Crim R 145
- R V Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Bourke v R (2010) 199 A Crim R 38
- AM v R [2012] NSWCCA 203
- Baghdadi v R [2012] NSWCCA 212
- Connelly v R [2012] NSWCCA 144
- KW v R (No. 2) [2013] NSWCCA 84
- PK v R [2012] NSWCCA 263
- Mendes v R [2012] NSWCCA 103
- Pham v R [2010] NSWCCA 208
- Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236
- Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312
- Barrett v R [2011] NSWCCA 213
- Alvares v R [2011] NSWCCA 33
- R (Commonwealth) v Elomar and ors [2010] NSWSC 10
- R v Coleman (1990) 47 A Crim R 306
- R v Fletcher-Jones (1994) 75 A Crim R 381