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Supreme Court 12 October 2017

R v Villaluna

[2017] NSWSC 1390

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER OFFENDER ABUSED AND TORMENTED EX PARTNER OFFENDER FOLLOWED EX

Citation: R v Villaluna [2017] NSWSC 1390
Court: Supreme Court of New South Wales
Date: 12 October 2017
Judge: Beech-Jones J

Background

The offender, a nurse in his mid-forties, had been in a long-term relationship with the victim of the wounding offence. Throughout that relationship he was controlling and physically violent towards her, and he had previously threatened to kill her if she entered another relationship. After the relationship ended in late 2015, he continued to monitor her movements, sent threatening messages, and purchased a hunting knife and a camouflage backpack in early March 2016.

In late March 2016, the woman arranged a first dinner date with a man she had met through a dating application. The offender tracked her to a shopping centre restaurant at Hornsby, entered the restaurant, and stabbed her date multiple times, killing him. He then stabbed the woman, wounding her seriously before leaving the scene.

The offender was charged with murder, wounding with intent to murder, and wounding with intent to cause grievous bodily harm. He pleaded guilty to murder and to the wounding with intent to cause grievous bodily harm. The Crown accepted those pleas in full satisfaction of all charges on the indictment, and the matter proceeded to sentencing.

  • Whether a life sentence was warranted for the murder, given the extreme nature of the offending.
  • How to apply the standard non-parole period guideposts for murder (20 years) and wounding with intent to cause grievous bodily harm (7 years) within the sentencing framework established by Muldrock v R.
  • What weight to give to the offender's plea of guilty against the significant aggravating factors, including planning, absence of remorse, and the domestic violence context.
  • How the sentences for the two offences should be structured (accumulated or concurrent) to reflect the totality principle while properly punishing each offence.

Decision

Beech-Jones J found that the murder was a particularly serious instance of the crime, but was not satisfied that the extreme culpability threshold required for a mandatory life sentence had been reached. The Crown did not press for life imprisonment, and his Honour accepted that position.

The court found the murder was planned. The offender had purchased the knife weeks earlier, tracked the woman's movements on the night, and had pre-determined that if he found her with another man he would kill that man and seriously harm her. There was no remorse. The only mitigating factor of substance was the plea of guilty, which saved witnesses, including the woman, from the trauma of a trial.

His Honour identified general deterrence, retribution, and denunciation as the dominant sentencing criteria in cases of extreme domestic violence. The court observed that perpetrators of extreme domestic violence of this kind can expect to spend most of the rest of their lives in prison.

The sentences were partially accumulated rather than made wholly concurrent, reflecting the fact that the murder and the wounding were committed against two different victims. The overall structure was designed to satisfy the totality principle while ensuring each offence was properly sentenced.

Orders Made

  • For wounding with intent to cause grievous bodily harm upon the woman: imprisonment for 12 years, with a non-parole period of 9 years commencing 30 March 2016 and an additional term of 3 years commencing 30 March 2025 and expiring 29 March 2028.
  • For the murder of the deceased: imprisonment for 34 years, with a non-parole period of 24 years commencing 30 March 2022 and an additional term of 10 years commencing 30 March 2046 and expiring 29 March 2056.
  • Overall sentence: 40 years' imprisonment, comprising a non-parole period of 30 years and an additional term of 10 years, taken to have commenced on 30 March 2016.
  • Earliest eligibility for parole: 30 March 2046. Last sentence expires: 29 March 2056.
  • The offender was notified of the potential application of the Crimes (High Risk Offenders) Act 2006 to both offences.

Key Takeaways

  • A life sentence for murder requires satisfaction that the offender's culpability is so extreme that retribution, punishment, community protection, and deterrence can only be met by that sentence; the threshold was not met here despite the court characterising the murder as a particularly serious instance of the offence.
  • Under the sentencing framework confirmed in Muldrock v R, the standard non-parole period functions as a legislative guidepost rather than a starting point; the sentencing court identifies all relevant factors, considers their significance, and then assesses the appropriate sentence by reference to both the maximum penalty and the standard non-parole period.
  • Planning, total absence of remorse, and a sustained pattern of domestic abuse and coercive control were treated as significant aggravating features that substantially reduced the weight available for mitigating factors.
  • Where a single criminal episode involves offences against two different victims, partial accumulation of sentences may be appropriate to reflect the true criminality of the conduct while still applying the totality principle.
  • Both the murder offence and the wounding with intent to cause grievous bodily harm constitute "serious violence offences" under the Crimes (High Risk Offenders) Act 2006, enlivening a statutory obligation on the Supreme Court to notify the offender of that legislation at sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A, 27, 33(1)(a)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2), 54A, 61(1)

Cases
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Cahyadi v R 168 A Crim R 41; [2007] NSWCCA 1
- Director of Public Prosecutions (Cth) v De La Rosa 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Milat v R; Klein v R [2014] NSWCCA 29
- Mulvihill v R [2016] NSWCCA 259
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Cullen [2015] NSWSC 768
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Maglovski (No 2) [2013] NSWSC 16
- R v Mulvihill [2014] NSWSC 443
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Thomson; R v Houlten 49 NSWLR 383; [2000] NSWCCA 309
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64