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Supreme Court 16 April 2014

R v Mulvihill

[2014] NSWSC 443

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER JURY VERDICT STABBING WITH INTENTION TO KILL FACT FINDING AFTER TRIAL

Citation: R v Mulvihill [2014] NSWSC 443
Court: Supreme Court of New South Wales
Date: 16 April 2014
Judge: Fullerton J

Background

The offender was convicted by jury of the murder of a 31-year-old woman at her home in North Curl Curl on the evening of 16 July 2012. The victim had been stabbed twice with a long-bladed knife, sustaining penetrating wounds to her neck and chest. Forensic evidence established she had also been subjected to extensive blunt and sharp force injuries consistent with a violent and prolonged struggle before her death.

Neighbours heard the victim screaming for help over approximately ten minutes before police arrived. The offender was heard to say, in a calm and controlled voice, that police did not need to be called. The victim was found unconscious behind the front door of her unit and was pronounced dead shortly after police arrived.

After leaving the scene, the offender disposed of the knife, his hooded jacket, and his shoes. None of those items were recovered. He was captured on CCTV footage returning to his hotel barefoot and in a T-shirt shortly before 10pm. Fullerton J rejected his evidence that he removed clothing because he was hot, finding instead that the items were discarded because they were bloodstained.

  • Whether the murder attracted a life sentence or should be assessed against the 20-year standard non-parole period
  • What findings of fact could be made on sentence in respect of matters not resolved by the jury's verdict, including whether the murder was premeditated
  • Where the offending fell on the range of objective seriousness
  • What weight to give to the offender's subjective circumstances, including the absence of remorse and prospects of rehabilitation
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term

Decision

Fullerton J declined to impose a life sentence, accepting the Crown's concession that the murder, while of very considerable gravity, did not reach the extreme culpability threshold required for that penalty. The standard non-parole period of 20 years therefore operated as a guidepost, representing a hypothetical offence in the middle of the range of objective seriousness.

On the contested question of premeditation, Fullerton J found that a positive finding of premeditation was not available on the evidence to the requisite standard. However, her Honour also rejected any characterisation of the killing as impulsive or spontaneous. The murder fell somewhere between those two poles, and that characterisation still placed it above the mid-range of objective seriousness, though not at the worst end of the scale.

The sentencing court assessed the offending as above the mid-range, having regard to the multiplicity and severity of injuries, the duration of the attack, the victim's prolonged and escalating distress, and the offender's conduct after the murder. The offender expressed no remorse, and his prospects of rehabilitation were assessed as guarded.

No special circumstances were found to justify disturbing the statutory ratio between the non-parole period and the balance of term under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The non-parole period imposed was moderated only modestly by mitigating factors.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 29 years.
  • Non-parole period: 22 years, commencing 16 February 2013 (accounting for pre-sentence custody) and expiring 15 February 2035.
  • Balance of term: 7 years, expiring 15 February 2042.
  • First eligible for release to parole on 15 February 2035.

Key Takeaways

  • A jury verdict of murder does not resolve all factual questions relevant to sentencing. The Supreme Court conducted its own fact-finding on contested issues, including premeditation, applying the standard required by R v Olbrich [1999] HCA 54.
  • Where a murder cannot be characterised as premeditated, that finding does not automatically reduce objective seriousness. Fullerton J found that an absence of premeditation does not place a murder below the mid-range if the circumstances otherwise indicate sustained, deliberate violence.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) functions as a legislative guidepost rather than a fixed benchmark, consistent with the approach confirmed in R v Muldrock [2011] HCA 39.
  • Comparative sentencing materials were considered in accordance with the High Court's guidance in Barbaro v R; Zirilli v R [2014] HCA 2 and Hili v R [2010] HCA 45, without treating any particular case or combination of cases as marking the outer bounds of the sentencing discretion.
  • No special circumstances were established to warrant a departure from the statutory ratio between non-parole period and balance of term, and the absence of remorse combined with guarded rehabilitation prospects limited the mitigation available to the offender.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 61(1)
- Evidence Act 1995 (NSW)

Cases
- Barbaro v R; Zirilli v R [2014] HCA 2
- Beldon v R [2012] NSWCCA 194
- Bugmy v R [1990] HCA 18; 169 CLR 525
- Hili v R [2010] HCA 45; 242 CLR 520
- James v R [2014] HCA 6
- MAH v R [2006] NSWCCA 226
- McLaren v R [2012] NSWCCA 284
- Pemble v R [1971] HCA 20; 124 CLR 107
- R v Gittany (No 5) [2014] NSWSC 49
- R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- R v Muldrock [2011] HCA 39; 244 CLR 120
- R v Olbrich [1999] HCA 54; 199 CLR 270