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Supreme Court 31 July 2014

R v Hill

[2014] NSWSC 1010

Homicide
CRIMINAL LAW MURDER SENTENCE MURDER SENTENCE RELEVANCE OF SUCH MATTERS ON SENTENCE

Citation: R v Hill [2014] NSWSC 1010
Court: Supreme Court of New South Wales
Date: 31 July 2014
Judge(s): Bellew J

Background

The offender pleaded guilty on 11 November 2013 to the murder of a 2-year-old boy, the infant son of his de facto partner, who died on 3 March 2008. The child had been left in the offender's sole care that morning while his mother attended TAFE. The cause of death was a massive fracture to the right occipital bone and resultant brain swelling.

The agreed facts revealed a pattern of prior mistreatment. On several earlier occasions, the child had suffered unexplained injuries, bruising, petechial rashes, and haemorrhages after being left in the offender's care. Notably, during a period in 2007 when the offender was voluntarily hospitalised, the child suffered no unexplained injuries.

The offender had also sustained serious physical injuries in a prior workplace accident and a motor vehicle accident. He suffered from Post Traumatic Stress Disorder (PTSD) and chronic pain. Evidence raised concerns about whether his treatment in custody was adequate to address those conditions.

  • How prior instances of mistreatment of the deceased child should be treated for sentencing purposes, given they were not the subject of separate charges
  • Whether the amended family victim impact statement provisions (introduced by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014) applied to this sentencing, given the plea had been entered before the amendments commenced
  • The relevance of the offender's PTSD, chronic pain, and alleged inadequacy of treatment in custody to the sentencing exercise
  • The appropriate non-parole period and total sentence, having regard to the standard non-parole period of 25 years prescribed where the victim was under 18

Decision

Prior instances of abuse: Bellew J accepted the agreed facts, which recorded a sustained pattern of physical harm to the child attributable to the offender across multiple occasions before the fatal incident. The court treated this history as relevant to the sentencing exercise, forming part of the overall factual context in which the murder occurred.

Victim impact statements: The 2014 amendments to the Crimes (Sentencing Procedure) Act 1999 would, in effect, have permitted family victim impact statements to be considered in determining punishment by treating the harm to the family as harm to the community. However, the transitional provisions of the amending Act excluded its operation where a plea of guilty had been accepted before commencement. Because the offender had pleaded guilty on 11 November 2013, before the Act commenced on 1 July 2014, the amendments did not apply. Bellew J therefore applied the pre-existing principles from R v Previtera and R v Bollen, under which such statements could not be taken into account as a factor in punishment.

Mental health and physical condition: The court accepted that the offender's PTSD, chronic pain from prior injuries, and concerns about the adequacy of his treatment in custody each bore on the sentencing exercise. His counsel conceded that if Justice Health properly addressed his treatment needs, the hardship of custody would be substantially lessened. Bellew J noted that his pain medication in custody appeared markedly reduced compared to the regime documented before his arrest, and that the adequacy of his antidepressant medication and psychological treatment had been questioned by expert evidence. The court recommended, as a matter of urgency, that Justice Health review and if necessary replace the offender's treatment regime.

Sentence: Taking all matters into account, including the standard non-parole period, the guilty plea, the offender's personal circumstances, and the objective gravity of the offence, the court imposed a total sentence of 27 years and 6 months imprisonment, with a non-parole period of 20 years and 6 months.

Orders Made

  • The offender was convicted of the murder of the deceased child.
  • A non-parole period of 20 years and 6 months imprisonment, commencing 12 May 2012 and expiring 11 November 2032.
  • A balance of term of 7 years imprisonment, commencing 12 November 2032 and expiring 11 November 2039.
  • Total sentence: 27 years and 6 months imprisonment.
  • Eligibility for parole: 12 November 2032.

Key Takeaways

  • The transitional provisions of the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 are significant: where a court had already accepted a plea of guilty before 1 July 2014, the amended regime permitting family victim impact statements to be taken into account in punishment does not apply, and the principles in Previtera and Bollen continue to govern.
  • A history of prior uncharged mistreatment of the victim by the offender, accepted as part of agreed facts, formed part of the factual matrix informing the appropriate sentence for the murder.
  • Where an offender in custody suffers from PTSD, chronic pain, and mental health conditions, evidence of potentially inadequate treatment since remand is a relevant consideration in the sentencing exercise, capable of affecting findings about the hardship of custody.
  • The Supreme Court used the sentencing judgment to make a formal recommendation that Justice Health urgently review the offender's treatment regime, reflecting the court's concern that the level of care in custody may not have matched the offender's documented medical needs.
  • Under Muldrock v R (2011) 244 CLR 120, the standard non-parole period for murder where the victim is under 18 (25 years) operates as a guidepost, not a mandatory minimum, and the sentencing court must weigh all relevant factors before fixing the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole periods)
- Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)

Cases:
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Previtera (1997) 94 A Crim R 76
- R v Bollen (1998) 99 A Crim R 51
- Anesbury v R [2009] NSWCCA 445
- R v Abrahams [2013] NSWSC 952
- R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
- R v Pfitzner [2009] NSWSC 1267
- R v Ross [2014] NSWSC 707
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Vachalec [1981] 1 NSWLR 351