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Supreme Court 19 December 2014

R v Serutawake

[2014] NSWSC 1762

HomicideDomestic & family violence
SENTENCE MURDER DOMESTIC VIOLENCE OFFENCE

Citation: R v Serutawake [2014] NSWSC 1762
Court: Supreme Court of New South Wales
Date: 19 December 2014
Judge: Mathews AJ

Background

The offender, a Fijian-born man, was convicted by jury of the murder of his wife at their home in a Narrabeen Lakeside caravan park on 21 October 2012. The couple had been married for 19 months and had a 13-month-old son. The offender was the primary carer for both the child and an elderly man with significant cognitive impairment who shared their accommodation.

In the early hours of the morning, following a night of drinking and an escalating argument, the offender retrieved a knife from the kitchen and stabbed his wife approximately 22 times. Five wounds were independently potentially fatal. A post-mortem examination identified defensive injuries on the deceased's hands, consistent with her grabbing at the blade. The offender contacted his aunt shortly afterward to collect the baby, and police were called when the body was discovered.

The offender never denied inflicting the fatal injuries. His defences at trial were self-defence (specifically, defence of his son) and provocation. The jury rejected both and returned a verdict of guilty of murder. The matter then proceeded to sentencing.

  • What sentence was appropriate for murder in a domestic violence context, having regard to the standard non-parole period of 20 years and the High Court's treatment of that figure in Muldrock v The Queen?
  • What weight should be given to mitigating factors, including the offender's remorse, background, guilty plea (if any), and the circumstances of the offending?
  • Whether the offender's account of the events immediately preceding the killing should be accepted on the balance of probabilities for sentencing purposes.
  • Whether the offence should be recorded on the offender's criminal record as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007.

Decision

Mathews AJ accepted the offender's account of the events leading up to the killing as sufficiently credible for sentencing purposes. The Crown challenged several aspects of that account, including whether the deceased had in fact been throwing and breaking objects, and whether she truly intended to take the baby when she left. The court found that the broken cot and scattered belongings were broadly consistent with the offender's version, and that the offender had consistently and without apparent self-interest maintained that the perceived threat to his custody of his son was the immediate trigger for the violence.

The court assessed the offending as falling below the mid-range of murders, given the circumstances: there was no premeditation, the offence arose from a domestic dispute, and alcohol had played a significant role. The court identified genuine remorse, the offender's lack of prior criminal history, his strong work ethic and community standing, and the significant disruption to his caring responsibilities as mitigating factors. However, the court placed considerable weight on general deterrence, noting that domestic killings remain alarmingly common and that sentences must send a clear deterrent message.

Applying Muldrock, the court treated the standard non-parole period of 20 years as a legislative guidepost rather than a mandatory starting point. Given the mitigating circumstances and the assessment that the offending fell below the mid-range, a non-parole period significantly below the standard figure was considered appropriate. The court also directed that the conviction be recorded as a domestic violence offence, an application the defence did not oppose.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 16 years, commencing 21 October 2012 and expiring 20 October 2028.
  • The balance of term was 5 years, expiring 20 October 2033, making a total sentence of 21 years.
  • The earliest parole eligibility date was set as 21 October 2028.
  • The court directed, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007, that the offence be recorded on the offender's criminal record as a domestic violence offence.

Key Takeaways

  • Following Muldrock v The Queen, the standard non-parole period for murder (20 years) operates as a guidepost, not a mandatory starting point, allowing courts to impose a significantly lower non-parole period where mitigating circumstances and the objective gravity of the offending warrant it.
  • Where an offender's account of pre-offence events is contested at sentencing, the court will assess whether that account is credible in light of physical evidence and the offender's overall conduct, rather than applying a strict standard of proof to each disputed element.
  • General deterrence carries significant weight in domestic homicide sentencing, even where specific deterrence is less pressing due to genuine remorse and a prior good character.
  • Under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007, a court must direct that a murder between intimate partners be recorded as a domestic violence offence on the offender's criminal record, where the offending falls within the statutory definition.
  • Mitigating factors such as absence of premeditation, alcohol intoxication, prior good character, remorse, and strong community ties can collectively bring an otherwise serious murder below the mid-range for sentencing purposes, though they do not diminish the gravity of the underlying conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12(2)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120