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Supreme Court 2 July 2015

R v Cullen

[2015] NSWSC 768

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER WHERE SELF ABSENCE OF MITIGATING FACTORS NO REMORSE OR CONTRITION

Citation: R v Cullen [2015] NSWSC 768
Court: Supreme Court of New South Wales
Date: 2 July 2015
Judge(s): Harrison J

Background

The offender, a 50-year-old man, was convicted by jury of the murder of his estranged wife following a three-week trial. The couple had separated in October 2013 after relocating to Australia, and at the time of the killing were engaged in proceedings in both the Local Court and the Family Court. They had three children together.

On 22 January 2014, the offender and the deceased attended Sutherland Local Court for a civil matter. After leaving court, the offender followed the deceased to her apartment car park, assaulted her, broke her nose, and forced her into the boot of his car. He then drove to a nearby retail store and purchased fishing knives before driving to a remote waterside location where he stabbed the deceased to death in what the court described as a ferocious and sustained attack.

The offender had pleaded guilty to manslaughter, but the Crown declined to accept that plea. Self-defence and provocation were the only substantial issues at trial, and the jury rejected both, returning a verdict of murder.

  • What sentence, including non-parole period, was appropriate for the murder conviction?
  • How should the standard non-parole period of 20 years for murder be applied in light of the objective seriousness of this particular offence?
  • What facts material to sentencing could be found consistently with the jury's verdict and the applicable standard of proof?
  • Were there any mitigating factors, including remorse, contrition, or personal circumstances, that warranted a reduction in the sentence?

Decision

Harrison J applied the approach to sentencing confirmed in Muldrock v R (2011) 244 CLR 120, identifying all relevant aggravating and mitigating factors before reaching a holistic assessment. The standard non-parole period of 20 years for murder represented the benchmark for a mid-range offence, but was not a starting point requiring specific departure reasoning.

The court found the offence sat above the middle of the range of objective seriousness. The killing involved premeditation in the purchase of weapons after trapping the deceased in a car boot, isolation of the victim in a remote location, sustained and ferocious violence, and significant suffering. The deceased's defensive wounds indicated she attempted to protect herself from repeated blows. Harrison J found the deceased was likely still alive in the boot when the attack began, and that her terror in those final moments was of an extreme character.

The court found no meaningful mitigating factors. The offender showed no remorse or contrition. He had pleaded guilty only to the lesser charge of manslaughter, which was rejected by the Crown, and no discount was available for that plea in the context of a murder conviction. The absence of a guilty plea to the charge actually tried also meant no sentencing discount applied on that basis.

Harrison J described the killing as motivated by the offender's own selfish and personal reasons, characterising it as callous, unnecessary, and of a very high level of culpability. The court acknowledged the tragedy for the deceased's family and children, and noted that the offender had remained in custody since the date of his arrest.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • Sentenced to a total term of imprisonment of 30 years, commencing 22 January 2014 and expiring 21 January 2044.
  • Non-parole period of 22 years and 6 months, expiring 21 July 2036.

Key Takeaways

  • The Supreme Court applied the Muldrock framework, treating the 20-year standard non-parole period as a reference point reflecting a mid-range murder, rather than as a starting point for a mathematical exercise.
  • Objective seriousness was assessed above the middle of the range where the killing involved premeditation, weapon acquisition, prolonged captivity of the victim, a remote location, and a sustained frenzied attack with evidence of significant suffering.
  • Fact-finding at sentencing must be consistent with the jury's verdict; adverse findings must be proved beyond reasonable doubt, while mitigating matters may be established on the balance of probabilities, following Isaacs v R and R v Pilley.
  • A guilty plea to a lesser charge that the Crown declined to accept does not attract a sentencing discount when the accused is subsequently convicted of the more serious charge at trial.
  • No reduction in sentence followed from the absence of remorse, contrition, or any other personal mitigating circumstance in the offender's background that the court identified as carrying weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B(2) and (3)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
- R v Pilley (1991) 56 A Crim R 202
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- Christodoulou v R [2008] NSWCCA 102
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 456