AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 21 November 2017

R v Ruttley (No 7)

[2017] NSWSC 1582

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MURDER INTENT TO CAUSE GRIEVOUS BODILY INJURY NOT PRE MEDITATED

Citation: R v Ruttley (No 7) [2017] NSWSC 1582
Court: Supreme Court of New South Wales
Date: 21 November 2017
Judge: Payne J

Background

The offender, Troy Jason Ruttley, was convicted by jury on 17 July 2017 of the murder of his long-term partner, Johann Morgan, on or about 9 August 2015 at Tamworth, New South Wales. The victim was 40 years old at the time of her death; the offender was 45. Although they did not live together, they had been in a relationship for approximately six years and spent time at each other's homes.

On the day of the murder, the offender and victim had been drinking alcohol together at the victim's property. Later that evening, after other family members had left, an audio recording captured the pair arguing. The victim was never seen alive again after that night. The offender subsequently transported the victim's body to an unknown location using his vehicle, then set the vehicle alight. The victim's body has never been found.

The sentencing proceedings addressed the appropriate term of imprisonment, taking into account the objective seriousness of the offence, the offender's personal circumstances including his Indigenous background and disadvantaged upbringing, his criminal history, his prospects of rehabilitation, and a range of aggravating and mitigating factors.

  • Whether the offender intended to kill the victim or merely to cause grievous bodily injury, and how that finding affected sentence
  • Whether the audio recording of the argument constituted evidence of provocation under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How to weigh the offender's disadvantaged Indigenous background, including evidence of executive dysfunction, against the need for deterrence and community protection
  • Whether a determinate sentence was appropriate, or whether a life sentence was warranted
  • How the standard non-parole period of 20 years for murder should operate as a guidepost in fixing the sentence

Decision

Payne J found that the offender intended to cause grievous bodily injury to the victim rather than to kill her, this being the only conclusion consistent with the jury's verdict. His Honour assessed the offence as falling within the mid-range of objective seriousness. Aggravating factors included that the offence was committed in the victim's home, that the offender disposed of the body and destroyed the vehicle to conceal his crime, and that he had prior convictions for violence including a breach of an apprehended violence order granted to protect the same victim.

His Honour rejected the submission that the audio recording established provocation. The recording showed the victim was upset and abusive, but the court was not satisfied on the balance of probabilities that it demonstrated the offender had been provoked. Equally, the court declined to find that the offender had been goading the victim; neither conclusion could be drawn without speculation.

The offender's disadvantaged Indigenous background was considered carefully, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571 and Munda v Western Australia (2013) 249 CLR 600. Evidence of executive dysfunction was taken into account to some extent in ameliorating the weight given to specific deterrence, but the court rejected the submission that this condition meant the offender lacked full awareness of the consequences of his actions, or that it established a causal link to the offending. The offender showed no remorse and maintained he was not responsible for the victim's death, though the court found he had some prospects of rehabilitation.

The court was satisfied that the interests of the community could be met by a determinate sentence rather than life imprisonment. Both the maximum penalty and the 20-year standard non-parole period served as guideposts. His Honour imposed a head sentence of 24 years with a non-parole period of 18 years, backdated to the date of the offender's arrest.

Orders Made

  • Head sentence of 24 years imprisonment for murder
  • Non-parole period of 18 years, commencing 21 December 2015 and concluding 20 December 2033
  • Balance of term of 6 years, commencing 21 December 2033 and concluding 20 December 2039
  • The offence was noted as a serious violence offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), with the offender's legal representatives directed to explain the Act's implications

Key Takeaways

  • A murder committed without premeditation, in a domestic setting, and where the offender intended grievous bodily harm rather than death, may still attract a non-parole period below the 20-year standard, depending on the balance of objective and subjective factors.
  • Under Bugmy v The Queen, the effects of a deeply disadvantaged Indigenous upbringing do not diminish with the number of offences committed and must be taken into account in mitigation, even where the court declines to find a direct causal link between disadvantage and the specific offending.
  • Destruction of evidence and concealment of the body were treated as aggravating factors going to the objective seriousness of the offence and the offender's consciousness of guilt.
  • The standard non-parole period for murder (20 years) operates as a guidepost rather than a mandatory minimum, and a sentencing court may depart from it where the full range of objective and subjective circumstances warrants doing so: Muldrock v The Queen (2011) 244 CLR 120.
  • An audio recording capturing a heated argument between offender and victim, without more, did not satisfy the balance of probabilities test for provocation under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 where drawing such an inference would amount to speculation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 21A, 54A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Veen (No 2) (1988) 164 CLR 465
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Alkanaan v R [2017] NSWCCA 56
- Biddle v R [2017] NSWCCA 128
- Roff v R [2017] NSWCCA 208
- Sumpton v R [2016] NSWCCA 162
- Jonson v R [2016] NSWCCA 286
- Aslan v R [2014] NSWCCA 114
- R v Birch [2016] NSWSC 816
- R v Shankley [2003] NSWCCA 253
- R v Hearne (2001) 124 A Crim 451; [2001] NSWCCA 37