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Supreme Court 31 October 2014

R v Jones (No 3)

[2014] NSWSC 1511

Assault & violenceHomicideDrugs
CRIMINAL LAW REMARKS ON SENTENCE OFFENDER FOUND GUILTY OF MURDER BY JURY DEATH BY LIGATURE STRANGULATION OFFENDER INTENDED TO KILL DECEASED

Citation: R v Jones (No 3) [2014] NSWSC 1511
Court: Supreme Court of New South Wales
Date: 31 October 2014
Judge(s): Button J

Background

The offender was convicted by jury of the murder of a 34-year-old woman at Coffs Harbour, with the relevant period falling between 11 and 17 December 2012. The two had met through the deceased's family social circle on the Central Coast only weeks before the killing. Evidence established that the offender was both an intravenous drug user and a supplier of prohibited drugs, and that both he and the deceased were using amphetamines in the period leading up to her death.

The pair travelled together by train to Coffs Harbour and checked into a motel on 10 December 2012. Over the following days, they moved to a second motel, where the deceased was last seen alive. The offender strangled her with a ligature, causing her death. A pathologist found evidence that the deceased had also been injured with a chemical substance before death, and that her body was treated with contempt after death.

In addition to the murder conviction, the offender pleaded guilty to a charge of supplying methylamphetamine (81.9 grams) on 15 December 2012. Both offences were dealt with together at sentence. The offender had a prior criminal history that included a previous conviction for brutal violence against a defenceless woman, for which he had served a significant period of imprisonment.

  • What is the appropriate sentence for murder, having regard to the maximum penalty of life imprisonment, the standard non-parole period of 20 years, and the particular circumstances of the offence?
  • What is the appropriate sentence for the supply of a prohibited drug, to be served concurrently or otherwise with the murder sentence?
  • How should disputed facts be approached at sentencing, including the standard of proof applicable to adverse and favourable facts?
  • Whether the offender's drug-induced state at the time of the offending could be taken into account in mitigation of the murder sentence.
  • How should the sentence reflect the offender's lack of remorse, prior violent offending, and commission of the offences while on conditional liberty?

Decision

Button J applied the standard sentencing framework for disputed facts: facts adverse to the offender must be proved beyond reasonable doubt, while facts in his favour need only be established on the balance of probabilities, following The Queen v Olbrich. His Honour also confirmed it was not his role to reconstruct the jury's fact-finding process; rather, he was required to make his own findings consistent with the verdict.

On the facts, Button J found that the offender strangled the deceased with the intention to kill. He also found that the deceased had been injured with a chemical before her death, and that her body was treated with contempt afterward. The offender expressed no remorse at any stage of the proceedings.

Button J declined to treat the offender's gross drug intoxication as a mitigating factor. The offending was described as unplanned and apparently motiveless, yet highly serious. The offender's prior conviction for brutal violence against a defenceless woman, his status on conditional liberty at the time of the offences, and his complete absence of remorse all weighed against him. The standard non-parole period of 20 years for murder served as an important guidepost, and Button J found no basis to depart below it.

For the drug supply offence, Button J imposed a fixed term of 18 months, noting the sentence structure meant no non-parole period would apply to that count. The murder sentence was structured to commence from the date the offender had been in custody on that charge.

Orders Made

  • Drug supply offence: Fixed term of 18 months imprisonment, commencing 15 December 2012 and expiring 14 June 2014. No non-parole period.
  • Murder: Non-parole period of 20 years, commencing 15 September 2013 and expiring 14 September 2033. Parole period of 7 years, expiring 14 September 2040. First eligible for parole release on 14 September 2033.
  • Overall: Head sentence of 27 years and 9 months; overall non-parole period of 20 years and 9 months.

Key Takeaways

  • Button J confirmed, consistent with The Queen v Olbrich, that a sentencing court must apply different standards of proof depending on whether the disputed fact is adverse or favourable to the offender: adverse facts require proof beyond reasonable doubt, and favourable facts require proof only on the balance of probabilities.
  • Gross drug intoxication at the time of an offence does not automatically operate in mitigation of sentence; Button J expressly declined to give it mitigating weight in the circumstances of this case.
  • A prior history of brutal violence against a defenceless person, and the commission of serious offences while on conditional liberty, are significant aggravating features that weigh against the offender at sentence under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The standard non-parole period of 20 years for murder functions as a legislative guidepost rather than a mandatory starting point, but its influence was evident in the sentence imposed here.
  • Complete absence of remorse remained a relevant factor in the sentencing exercise, contributing to the court's characterisation of the offending as warranting a sentence of due severity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28(4)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
- R v Qutami [2001] NSWCCA 353