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Supreme Court 14 June 2016

R v Birch

[2016] NSWSC 816

HomicideDomestic & family violence
CRIMINAL LAW MURDER DOMESTIC VIOLENCE EARLY GUILTY PLEA SOUND REHABILITATION PROSPECTS SENTENCE IMPOSED

Citation: R v Birch [2016] NSWSC 816
Court: Supreme Court of New South Wales
Date: 14 June 2016
Judge(s): Rothman J

Background

The offender pleaded guilty to the murder of his partner, Carol Penrith, following an incident on 27 to 28 November 2014 at Griffith, New South Wales. Both the offender and the deceased were Aboriginal and had been in a relationship of approximately three years, during which prior incidents of domestic violence had occurred. No charges arising from those earlier incidents had proceeded, largely because complaints were not pressed.

On the night of the offence, both the offender and the deceased had been drinking heavily for several days. An argument broke out over a missing key card, and the offender subjected the deceased to a sustained, violent assault. The offender's brother, who was present outside the premises, heard the assault and attempted to intervene without success.

The following morning the deceased was found dead. An autopsy revealed two lacerations to the heart, caused by multiple fractured ribs, along with extensive other injuries consistent with repeated blows. The offender had been in custody since 3 December 2014.

  • What was the appropriate head sentence for murder in these circumstances, taking into account the objective seriousness of the offence?
  • What weight should be given to the offender's deeply disadvantaged Aboriginal background under the principles in R v Fernando and Bugmy v The Queen?
  • Whether the offence involved an intention to kill, or only an intention to cause grievous bodily harm.
  • Whether the offence involved gratuitous cruelty as an aggravating feature.
  • What discount applied for the early guilty plea under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be balanced, including general deterrence, rehabilitation, and protection of the community.

Decision

Rothman J found that the offender intended to cause grievous bodily harm but did not intend to kill the deceased. The Crown did not contend otherwise. Although the assault was brutal and sustained, the court did not characterise it as involving gratuitous cruelty within the meaning of McCullough v R, because there was no indication that inflicting pain was an end in itself.

The court gave significant weight to the offender's background. The offender had experienced abuse, neglect, homelessness, and institutionalisation from infancy. Applying the principles established in R v Fernando, as affirmed by the High Court in Bugmy v The Queen, Rothman J found that this background diminished the offender's moral culpability. The court adopted the observation from R v Millwood that a person denied a stable and advantaged upbringing does not bear equal moral responsibility with one who had such a start in life.

The court identified an indicative starting head sentence of 27 years before applying the guilty plea discount. The offender's early guilty plea attracted a 25 per cent discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court noted that the offender had shown genuine remorse and, with appropriate treatment and supervision, had sound prospects of rehabilitation. The spontaneous, unpremeditated nature of the offence reduced the weight given to personal deterrence, but increased the weight given to community protection pending rehabilitation.

Rothman J balanced the full range of sentencing purposes under s 3A, observing that rehabilitation and community protection can, in some cases, be complementary goals rather than competing ones.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to a non-parole period of 13 years' imprisonment, commencing 3 December 2014 and concluding 2 December 2027.
  • Remainder of term of a further 7 years' imprisonment, concluding 2 December 2034.
  • First eligible for release on 2 December 2027.

Key Takeaways

  • Applying R v Fernando and Bugmy v The Queen, the Supreme Court found that an offender's profoundly disadvantaged Aboriginal background is a meaningful mitigating factor, reducing moral culpability, though it cannot justify a sentence that fails to reflect the objective seriousness of the offence.
  • A conviction for murder does not require proof of an intention to kill. Where only an intention to inflict really serious injury is established, that remains relevant to the assessment of overall culpability and sentencing.
  • Under McCullough v R, the concept of gratuitous cruelty requires that inflicting pain was an end in itself. Extreme violence alone does not automatically satisfy that criterion.
  • An early guilty plea to a serious charge such as murder attracted a 25 per cent utilitarian discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Sentencing courts treating spontaneous, unpremeditated offending may reduce the weight given to personal deterrence while simultaneously placing greater weight on community protection, at least until rehabilitation is demonstrated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Kennedy v The Queen [2010] NSWCCA 260
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- R v Fernando (1992) 76 A Crim R 58
- R v Millwood [2012] NSWCCA 2