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Supreme Court 2 June 2017

R v Rhodes

[2017] NSWSC 694

Assault & violenceHomicideDrugs
CRIMINAL LAW SENTENCE DOUBLE MURDER MURDER OF A CHILD DRUG INDUCED PSYCHOSIS

Citation: R v Rhodes [2017] NSWSC 694
Court: Supreme Court of New South Wales
Date: 2 June 2017
Judge: Campbell J

Background

The offender pleaded guilty to four offences arising from a single episode on the night of 8 September 2015. He murdered his mother, Linda (aged 63), and an eight-year-old boy, Braydon, at the family home where they lived together with several children. Both victims died from massive blunt force trauma to the head, inflicted with heavy objects taken from the garden, alongside stab wounds.

On the same night, the offender also assaulted a passing motorist, Annabelle Saludo, by menacing her, attempting to enter her car, and damaging it. When police arrived, he armed himself with a meter cover and challenged a senior constable, assaulting him while resisting arrest.

The offender had spent much of that day drinking, playing poker machines, and smoking cannabis and methylamphetamine (ice). At the time of the killings he was exhibiting signs consistent with drug-induced psychosis, believing intruders were in the house. The murders were witnessed by children who were residents of the home. Two of those children provided victim impact statements.

  • What is the appropriate aggregate sentence for two murders and two assaults, committed in a single episode by an offender who pleaded guilty?
  • How should drug-induced psychosis bear on culpability and sentence, particularly where it does not amount to a complete defence?
  • To what extent does a deprived background, including a possible mild intellectual disability and long-term drug addiction, mitigate the sentence under the principles in Bugmy v The Queen (2013) 249 CLR 571?
  • How should the court apply the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999 (NSW) for murder, including the murder of a child?
  • What weight attaches to the guilty pleas, and how should the principle of totality be applied across multiple serious offences?

Decision

Campbell J imposed an aggregate sentence of 40 years' imprisonment with a non-parole period of 30 years, backdated to 8 September 2015. The sentence reflected the extreme gravity of two murders committed in a single episode, including the deliberate killing of an eight-year-old child who pleaded for his life.

His Honour found that the offender's drug-induced psychosis reduced his moral culpability to some degree, but did not eliminate it. The offender had voluntarily consumed alcohol, cannabis, and ice throughout the day, and the psychotic state was self-induced. The murders were carried out with sustained and ferocious violence. The offender claimed to have no recollection of the offending, but that claimed amnesia could not itself operate as mitigation.

The court acknowledged the offender's profoundly deprived background, consistent with the principles in Bugmy, which recognise that childhood deprivation and its ongoing effects on an offender's functioning may reduce moral culpability. A possible mild intellectual disability was also considered. These factors provided some mitigation, but the court found they were substantially outweighed by the objective gravity of the offences, including the vulnerability of the victims, the extreme violence employed, and the presence and trauma of child witnesses.

The guilty pleas were given appropriate weight as a utilitarian benefit to the justice system, though the court noted the evidence against the offender was overwhelming. The totality principle was applied through the aggregate sentencing regime, with indicative sentences set for each count before arriving at the combined term.

Orders Made

  • Murder of Linda: indicative term of 24 years, with a non-parole period of 18 years
  • Murder of Braydon: indicative term of 30 years, with a non-parole period of 22 years and 6 months
  • Assault on Ms Saludo: indicative term of 14 months
  • Assault on Senior Constable Lewis: indicative term of 2 years
  • Aggregate sentence: 40 years' imprisonment with a non-parole period of 30 years, commencing 8 September 2015
  • Non-parole period to expire 7 September 2045; total term to expire 7 September 2055
  • The offender was warned that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply at the expiration of sentence

Key Takeaways

  • Drug-induced psychosis arising from voluntary intoxication may reduce an offender's moral culpability at sentence, but does not eliminate it, particularly where the offender chose to consume the substances that produced the psychotic state.
  • Under Bugmy v The Queen, the ongoing effects of a deprived childhood retain mitigating force regardless of the seriousness of the offending, but Campbell J confirmed that profound deprivation does not prevent the imposition of very heavy sentences where the objective criminality demands it.
  • Claimed amnesia for the offending is not, of itself, a mitigating factor; the court treated the offender's asserted lack of recollection as neither aggravating nor independently reducing his culpability.
  • The murder of a child attracted an indicative sentence of 30 years, the highest of the four counts, reflecting the particular vulnerability of the victim and the sustained nature of the violence, including the victim's pleas during the attack.
  • An aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to set indicative sentences for each count before arriving at a total that reflects the full criminality without crushing the offender, consistent with the totality principle confirmed in R v Henry (1999) 48 NSWLR 346.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DL v R [2017] NSWCCA 57
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Fang (No 4) [2017] NSWSC 323
- R v Henry (1999) 48 NSWLR 346; [1999] NSWCCA 111
- R v Maybir (No 8) [2016] NSWSC 166
- R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309