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9
Supreme Court 3 May 2017

R v Biles (No 2)

[2017] NSWSC 525

Assault & violenceHomicideDomestic & family violence
SENTENCE MURDER DOMESTIC VIOLENCE INDIGENOUS OFFENDER AND VICTIM PROLONGED ASSAULT BY OFFENDER ON VICTIM INTENT TO CAUSE GRIEVOUS BODILY HARM

Citation: R v Biles (No 2) [2017] NSWSC 525
Court: Supreme Court of New South Wales
Date: 3 May 2017
Judge: Fagan J

Background

The offender, a 24-year-old Aboriginal man, was convicted after an 11-day jury trial of murdering his 18-year-old partner, also Aboriginal, at Brewarrina on 25 April 2015. The couple had been in an intimate relationship for approximately three and a half years and had a young child together. At the time of the murder, they were temporarily staying in a relative's flat.

The victim died after the offender punched and likely kicked her repeatedly to the head in their shared bedroom. The assault lasted approximately 20 minutes. Several women in an adjacent room heard the victim's screams and moans. The sustained beating fractured the victim's jaw, rendered her unconscious, and caused suppression of her breathing, leading to her death.

The offender had a documented history of violence against the victim dating back to at least August 2013. That history included multiple incidents of punching her to the head, knocking her to the ground, and kicking her while she was down.

  • Whether a life sentence was required under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or whether a finite term was appropriate.
  • What weight to give the standard non-parole period of 20 years for murder when calibrating the sentence.
  • How to balance the objective seriousness of the offence against relevant mitigating factors, including the offender's Indigenous background, deprived upbringing, and cognitive limitations.
  • How to treat the offender's prior criminal history and prior domestic violence against the victim as aggravating factors.
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act warranting a longer balance of term.

Decision

Fagan J was satisfied beyond reasonable doubt that the offender's sustained beating of the victim was a substantial cause of her death. The court rejected the offender's evidence that he had delivered only three punches and that most injuries were self-inflicted, finding that account "naive and fantastic." The Crown's forensic pathology evidence and eyewitness accounts constituted an overwhelming circumstantial case against him.

On sentence, the court assessed the objective seriousness of the offence as above mid-range. The assault was prolonged, committed in the context of a sustained pattern of domestic violence, and the victim was rendered particularly vulnerable by her smaller size, young age, and intoxication at the time. The offender's intent was found to be to cause grievous bodily harm rather than to kill, which bore on the level of culpability but did not substantially reduce the seriousness.

The court acknowledged the principles in R v Fernando and the High Court's decision in Bugmy v The Queen, which recognise that the depriving social environment experienced by many Aboriginal offenders may diminish moral culpability. The offender had experienced poverty, exposure to violence and substance abuse, and had cognitive and educational limitations. The court gave weight to these matters, though it noted they could not excuse or substantially reduce the gravity of what was done to the victim.

The court declined to impose a life sentence, finding the statutory threshold in s 61(1) was not met. Taking all factors into account, including the aggravating history of domestic violence, the lack of remorse, the victim's vulnerability, and the relevant mitigating factors, the court fixed a non-parole period of 18 years (below the 20-year standard, reflecting the mitigating factors) with a balance of term of 6 years. No special circumstances were found.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 18 years, commencing 26 April 2016 and expiring 25 April 2034, and a balance of term of 6 years, expiring 25 April 2040.
  • The offender was notified under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the Act applies to him and to this offending.
  • The murder conviction was recorded as a domestic violence offence on the offender's criminal record pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Key Takeaways

  • A prolonged assault causing death in a domestic setting, combined with a documented history of escalating violence against the same victim, placed this murder above the mid-range of objective seriousness for sentencing purposes.
  • Under the principles in Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58, an Aboriginal offender's deprived background and exposure to violence may reduce moral culpability, but those principles do not operate to substantially discount sentences for serious violence against Aboriginal victims in domestic settings.
  • The standard non-parole period of 20 years for murder operates as a legislative benchmark; a court may depart below it where genuine mitigating factors are established, as occurred here with an 18-year non-parole period.
  • Absence of remorse and the offender's sustained dishonesty at trial were treated as factors telling against any reduction in sentence on the basis of contrition or rehabilitation prospects.
  • Recording a murder conviction as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 is a distinct statutory step that the court is required to take where the offending falls within the domestic violence definition.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12(2)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 44(2), 61(1), Part 4 Div 1A
- Evidence Act 1995 (NSW), s 184

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- R v Dunn [2004] NSWCCA 41; 144 A Crim R 180
- R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Mahon [2015] NSWSC 25
- ZZ v R [2013] NSWCCA 83