Citation: R v Pratsch [2016] NSWSC 1466
Court: Supreme Court of New South Wales
Date: 14 October 2016
Judge(s): Wilson J
Background
The offender pleaded guilty to the murder of Mark Beverstock, a 50-year-old man with cognitive and physical disabilities resulting from a childhood brain injury. The offence occurred on 25 October 2014 at his home in Booker Bay, New South Wales. The offender had visited the deceased that morning, accompanied him to a hotel where she withdrew $400 from his account using his bank card, and then returned with him to his home.
At the residence, the offender tied the deceased naked to a bed using items of clothing and stabbed him multiple times to the chest and stomach. The deceased sustained some twenty stab and incised wounds, including one penetrating the right ventricle of the heart. After the attack, the offender placed a pillow over his face, barricaded the bedroom door, and left. She then used the deceased's bank card on multiple further occasions over the following day and a half, withdrawing a total of more than $1,700.
The deceased's body lay undiscovered for approximately two days until his brother forced open the barricaded bedroom door. The offender was charged on 28 October 2014 and did not enter a guilty plea until 9 August 2016, the second day of her trial.
Legal Issues
- What discount, if any, should apply to the sentence given the timing of the guilty plea, entered on the second day of trial rather than at an earlier opportunity?
- Whether the offender's post-traumatic stress disorder (PTSD) and history of domestic violence constituted a mitigating factor, and whether a causal link to the offending was established.
- Whether the offender's history of drug use was a mitigating factor.
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify varying the standard ratio between non-parole period and balance of term.
Decision
Wilson J sentenced the offender to 22 years and 6 months imprisonment for murder, comprising a non-parole period of 16 years and 10 months. The court found the offence to be a serious example of the crime of murder, involving a vulnerable victim who was restrained and stabbed multiple times in a premeditated attack followed by deliberate attempts to conceal the offence and to exploit the deceased's financial accounts.
On the guilty plea, the court noted the well-established controversy as to whether a discount should apply where a plea is entered after a trial has commenced. Wilson J acknowledged the unsettled state of the law (then under consideration by a five-judge bench of the Court of Criminal Appeal) but proceeded to allow a modest discount, treating the plea as evidence of some remorse and as having practical utility in sparing witnesses from giving evidence.
The court accepted that the offender had a significant history of experiencing domestic violence and suffered from PTSD, and that these were relevant background circumstances. However, the court did not find a sufficient causal connection between those conditions and the commission of the offence to treat them as substantially mitigating culpability. The offender's long history of drug use was acknowledged as relevant context, particularly in relation to rehabilitation prospects.
The court declined to make a finding of special circumstances. Wilson J accepted that the offender's psychiatric conditions and drug addiction would benefit from extended post-release supervision, but found that the parole period arising from the standard statutory ratio would itself be sufficiently lengthy to provide adequate support and facilitate reintegration. No reduction to the non-parole period below the standard ratio was therefore warranted.
Orders Made
- The offender convicted of murder and sentenced to imprisonment for 22 years and 6 months.
- Non-parole period of 16 years and 10 months, commencing 28 October 2014 and expiring 27 August 2031.
- Balance of term of 5 years and 8 months, expiring 27 April 2037.
- The offender advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C(1) of that Act.
Key Takeaways
- A guilty plea entered on the second day of trial may attract a discount, but the extent of that discount is limited by the lateness of the plea, and the legal question of whether any discount is available in such circumstances remained unsettled at the time of this decision, then under consideration by a five-judge Court of Criminal Appeal bench.
- Where an offender has a history of PTSD and domestic violence victimisation, those matters may be relevant background context, but they will not substantially reduce culpability unless a causal link to the specific offending is established.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the mere existence of a basis for a special circumstances finding does not compel the court to make one. The court retains a discretion and may decline where the standard parole period is already adequate to meet rehabilitative and supervisory needs.
- The standard non-parole period of 20 years for murder operates as a statutory guidepost, not a mandatory minimum, and the sentencing court calibrates the sentence by reference to the full range of objective and subjective factors.
- Sentencing courts must advise offenders convicted of murder of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application, pursuant to s 25C(1) of that Act.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18 (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Drug Court Act 1998 (NSW)
Cases
- Aktar v R [2015] NSWCCA 214
- Erazo v R [2016] NSWCCA 139
- Filippou v The Queen [2015] HCA 29
- Melbom v R [2013] NSWCCA 210
- Montero v R [2013] NSWCCA 214
- R v Ingham [2011] NSWCCA 88
- R v Scott [2005] NSWCCA 152