Citation: R v Adams (No 7) [2017] NSWSC 179
Court: Supreme Court of New South Wales
Date: 3 March 2017
Judge: Button J
Background
The offender was found guilty of murder following a judge-alone trial, with the offence having been committed on or about 24 September 1983, more than three decades before the verdict. The deceased, a 33-year-old woman, had accepted what she believed was a safe lift home from a wine bar on Sydney's lower North Shore. The offender had falsely represented himself to her companions as a police officer.
The offender, then aged 31, drove the deceased a short distance from the wine bar and applied manual pressure to her windpipe in an attempt to compel non-consensual sexual intercourse. The deceased, who was heavily intoxicated and therefore particularly vulnerable, died from asphyxiation. The offender subsequently concealed her body and took steps to remove evidence from his vehicle. Her remains were never recovered.
The Crown proceeded on the basis of constructive murder (also known at the time as felony murder), meaning the prosecution did not allege that the offender intended to kill or cause grievous bodily harm. Rather, the offender caused death while committing a serious criminal act.
Legal Issues
- What sentencing approach applies to a murder committed in 1983, when the maximum penalty was technically a mandatory term of life imprisonment?
- How should the objective seriousness of a constructive murder be assessed, given the absence of an intent to kill?
- What weight should be given to the absence of any subjective evidence tendered on behalf of the offender?
- Whether the circumstances warranted a life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits such a sentence only where a determinate term would be inadequate.
- How delay between the offence and sentencing, the offender's age, his criminal history, and the absence of remorse bear on the appropriate sentence.
Decision
Both counsel agreed that, although a life sentence was technically mandatory for murder in 1983, the Court should not simply impose that sentence automatically. The parties provided a joint position on the appropriate sentencing framework, which the Court accepted. The sentencing exercise therefore involved a genuine assessment of objective and subjective factors, drawing on sentencing practices in and since 1983.
On objective seriousness, Button J found the offence to be extremely grave. Although the death was unintended, the offender deliberately attempted to violate the deceased's sexual autonomy using an act obviously dangerous to human life, and was aware of that danger despite his own intoxication. The Court distinguished this offence from murders involving an intent to kill, but found the circumstances nonetheless demanded a very substantial sentence.
The complete absence of evidence tendered in mitigation significantly constrained the Court's assessment. The Court had access to the offender's criminal and custodial record, which revealed a long history of offending including a 1976 rape conviction, and a documented tendency to strangle women who rejected his sexual advances. No evidence of rehabilitation, remorse, or changed circumstances was placed before the Court.
Button J declined to impose a life sentence under s 61. The judge was not satisfied that a determinate sentence would fail to adequately reflect the gravity of the offending, noting that life sentences in New South Wales have generally been reserved for offences involving exceptional cruelty, torture, or mutilation. However, the Court acknowledged that the non-parole period imposed was of a length that could result in the offender dying in custody.
Orders Made
- The offender was convicted of murder.
- A head sentence of 20 years imprisonment was imposed, with a non-parole period of 15 years.
- The sentence was backdated to commence on 11 June 2016.
- The earliest eligibility date for release to parole is 10 June 2031, with the parole period expiring on 10 June 2036.
Key Takeaways
- Where a murder was committed in 1983 under a then-mandatory life sentence regime, the Supreme Court confirmed that a proper sentencing exercise still requires genuine assessment of objective and subjective factors rather than automatic imposition of the maximum penalty.
- Constructive (felony) murder, where there is no proven intent to kill or cause grievous bodily harm, is treated as distinct from intention-based murder in assessing comparative gravity, though it remains an extremely serious offence.
- Under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence is reserved for cases where no determinate term could adequately reflect the seriousness of the conduct; in New South Wales that threshold has consistently required features such as exceptional cruelty, torture, or mutilation.
- A complete absence of mitigation evidence tendered by the defence substantially limits the sentencing court's ability to make findings favourable to the offender, including findings about personal circumstances, rehabilitation, or changed character.
- Victim impact statements were received and considered in accordance with the principles in R v Previtera (1997), confirming the long-standing approach that such statements inform the court of the human consequences of the offence without altering the objective assessment of its seriousness.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61
Cases
- AJB v R (2007) 169 A Crim R 32; [2007] NSWCCA 51
- Magnuson v R [2013] NSWCCA 50
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Fleming [2007] NSWSC 673
- R v Previtera (1997) 94 A Crim R 76
- R v Todd [1982] 2 NSWLR 517
- Sabra v R [2015] NSWCCA 38