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Supreme Court 30 July 2015

R v Murray

[2015] NSWSC 1034

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER PLEA OF GUILTY MURDER OF DE FACTO PARTNER GRAVITY OF OFFENCE

Citation: R v Murray [2015] NSWSC 1034
Court: Supreme Court of NSW
Date: 30 July 2015
Judge: Schmidt J

Background

The offender pleaded guilty to the murder of his de facto partner of approximately three years, whom he stabbed seven times in the back and left to bleed to death. The plea was entered shortly before a trial fixed to commence on 6 July 2015. The murder occurred in November 2013 and the offender was arrested on 26 November 2013.

The offending took place in a domestic context. At the time of the killing, the offender was bound by an apprehended violence order made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The victim's family provided victim impact statements, which the Court took into account in sentencing.

The sentencing proceedings required the Court to assess the objective gravity of the offence, weigh aggravating and mitigating factors, determine the appropriate discount for the guilty plea, and fix a non-parole period by reference to the statutory standard of 20 years.

  • Whether the offender's culpability warranted the maximum sentence of life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Where within the range of objective seriousness the offence fell, relative to the standard non-parole period of 20 years for murder
  • What discount should be applied to reflect the guilty plea entered under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether recent public attention to domestic violence should influence the sentencing approach, particularly in relation to general and specific deterrence
  • Whether special circumstances existed to justify departing from the statutory one-third ratio between the non-parole period and the balance of the sentence

Decision

Schmidt J rejected the submission that heightened public attention to domestic violence should be treated as creating a special sentencing category. The Court held, however, that domestic violence offences require sentences carrying meaningful degrees of both general and specific deterrence, noting that such offending remains all too common. Murder committed in a domestic setting is the most serious example of that category of offending and cannot be treated any less gravely than other murder.

The Court was satisfied, consistently with the parties' agreed position, that this was not a case of extreme culpability warranting life imprisonment under s 61(1). Applying the instinctive synthesis required by Markarian v The Queen [2005] HCA 25, Schmidt J identified a starting point of 29 years imprisonment, taking into account the objective gravity of the offence, the aggravating factors (including that the offender was on conditional liberty subject to an apprehended violence order at the time of the killing, the domestic setting, and the offender's criminal record), and any mitigating factors, including the hardship of custody and the guilty plea.

A discount of 12.5 per cent was applied to reflect the guilty plea, which had been entered relatively late, shortly before trial. The Court found no special circumstances that would justify departing from the statutory ratio requiring the balance of term not to exceed one-third of the non-parole period. The resulting non-parole period of 19 years fell just below the standard non-parole period of 20 years, reflecting the overall assessment of where the offence sat within the range of seriousness for murder.

Orders Made

  • The offender was convicted of the murder of his de facto partner.
  • Sentenced to 25 years 4 months imprisonment, commencing 26 November 2013.
  • Non-parole period of 19 years, expiring 25 November 2032.
  • Balance of term of 6 years 4 months, expiring 25 March 2039.

Key Takeaways

  • Heightened community and media focus on domestic violence does not create a special sentencing category, but domestic violence offences, up to and including murder, require sentences that address both general and specific deterrence as a matter of established principle.
  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), life imprisonment is reserved for cases of extreme culpability; the burden of establishing that threshold falls on the Crown.
  • A guilty plea entered shortly before trial attracted a 12.5 per cent discount, reflecting the relatively late stage at which the plea was made.
  • Sentencing for murder requires the court to conduct an instinctive synthesis of all relevant factors, including the standard non-parole period of 20 years as a statutory benchmark for offences of mid-range seriousness, consistent with Muldrock v The Queen [2011] HCA 39.
  • Victim impact statements were accepted as relevant to illuminate the harm caused to the deceased's family, even though they did not determine the quantum of the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 44(2), 54A, 54B, 61(1)

Cases
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Hiron v R [2007] NSWCCA 336
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Loveridge [2014] NSWCCA 120
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Aktar v R [2015] NSWCCA 123
- Betts v R [2015] NSWCCA 39
- Essex v R [2013] NSWCCA 11