AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 23 November 2017

R v Walker (No 8)

[2017] NSWSC 1548

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER DEATH OF CONVICTED OFFENDER CONSEQUENCES OF THE OFFENDER’S DEATH VICTIM IMPACT STATEMENTS

Citation: R v Walker (No 8) [2017] NSWSC 1548
Court: Supreme Court of New South Wales
Date: 23 November 2017
Judge: Schmidt J

Background

The offender was convicted by a jury in August 2017 of the murder of his partner in April 2015. The killing arose from a prolonged episode of domestic violence late at night at the home the couple shared, culminating in the offender striking the deceased under the chin and pulling her forcibly backwards to the ground, causing fatal bleeding on the brain.

The matter was listed for sentencing on 16 November 2017. Before that date, the Court was informed that the offender had been hospitalised and diagnosed with terminal cancer. Neither the trial nor the sentencing hearing had included any evidence of serious ill health.

A further adjournment was granted to allow the offender to instruct counsel on whether he wished to waive his right to be present at sentencing. Before that question was resolved, the Court was notified that the offender had died in custody. His death made the question of proceeding in his absence moot.

  • Whether the Court could impose a sentence on a convicted offender who had died after conviction but before sentencing.
  • Whether the Court could publish sentencing remarks in the absence of an imposed sentence.
  • Whether the Court could nonetheless make observations about the offending and acknowledge the harm caused to the victim's family.

Decision

The Crown accepted, and Schmidt J agreed, that sentencing could not proceed. Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a "sentence" is defined as the penalty imposed for an offence. Section 5 of that Act, which governs imprisonment, necessarily contemplates that the offender must be alive to serve the intended penalty. Because a sentence of imprisonment cannot be served by a deceased person, no penalty could be imposed.

The purposes of sentencing set out in s 3A of the Act, including adequate punishment, deterrence, community protection, rehabilitation, and denunciation, also supported this conclusion. Once the offender was dead, none of those purposes could be given effect through the imposition of a formal sentence. Accordingly, formal sentencing remarks of the kind that would ordinarily have been delivered could not be published.

Schmidt J held, however, that it remained open to the Court to make observations about the offending in open court, even without a formal sentence. Her Honour recorded findings that the offender's violence was deliberate and considerable, that the deceased was particularly vulnerable given her intoxication and the nature of the relationship, and that the offender had left her unconscious, bleeding heavily, and in obvious need of assistance without calling for help.

The Court also received victim impact statements from the deceased's family, in particular her daughter, and Schmidt J expressed the Court's deepest sympathy to the family. Her Honour acknowledged the community's recognition of the harm caused, and observed that domestic violence offending is particularly abhorred, citing the High Court's remarks in Munda v Western Australia.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A convicted but unsentenced offender cannot be sentenced after death: the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that a penalty be capable of being imposed and served, which is impossible once the offender has died.
  • Formal sentencing remarks prepared for delivery cannot be published where no sentence has been, or can be, imposed.
  • Notwithstanding the inability to sentence, the Supreme Court held that it retained the capacity to make observations about the offending in open court, acknowledging the seriousness of the conduct and the harm done to the victim and her family.
  • Under the Crimes (Administration of Sentences) Act 1999 (NSW), the State Parole Authority holds discretion to release a dying offender on parole, and the Crown's prerogative of mercy is preserved by that Act; in this case, neither avenue was exercised before the offender's death.
  • Domestic violence related offending is particularly abhorred by the law, a principle affirmed by the High Court in Munda v Western Australia (2013) 249 CLR 600 and reiterated here in the Court's observations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 4, 5
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 160, 270

Cases
- R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38