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Supreme Court 23 August 2018

R v Walsh

[2018] NSWSC 1299

Homicide
CRIME SENTENCING MURDER DOWN ASSESSMENT OF LEVEL OF CULPABILITY RELEVANCE OF PREVIOUS OFFENCES

Citation: R v Walsh [2018] NSWSC 1299
Court: Supreme Court of NSW
Date: 23 August 2018
Judge(s): McCallum J

Background

The offender had previously pleaded guilty in 2009 to the murders of his wife and two grandchildren and to causing grievous bodily harm with intent to murder his daughter. McCallum J had sentenced him on that occasion to two concurrent life sentences plus lengthy determinate terms. He was serving those sentences at Long Bay Correctional Centre's Kevin Waller Unit, an integrated aged care facility for elderly and frail prisoners.

Approximately five days after being moved into a shared cell with the victim, a fellow prisoner, the offender attacked him during a late-night lock-down using a Breville sandwich press concealed in a pillowcase. The victim suffered catastrophic blunt-force injuries to the head, face and neck and later died in hospital. Corrective Services officers who attended the cell mid-attack were deliberately misled by the offender, who paused the assault and feigned inaction before resuming once the officers moved on.

The offender pleaded guilty to the murder of the victim and appeared before McCallum J for sentencing. The victim's family attended the sentencing proceedings.

  • Whether a life sentence was warranted for a fourth murder, given the offender was already serving two life sentences with no entitlement to parole.
  • Whether the objective seriousness of the offence and the totality of the offender's criminal history brought the case within the category requiring the maximum penalty.
  • What weight, if any, to give to the offender's prior criminal history, his guilty plea, and his physical and psychological condition as mitigating factors.
  • Whether the sentencing exercise retained purpose given the offender could never be released.

Decision

McCallum J rejected any suggestion that sentencing the offender was a pointless exercise. The Court held that it remained important to punish the offender separately for taking the victim's life, acknowledging the suffering of the victim's family. The existence of two prior life sentences did not render a further sentence for a fourth murder an empty formality.

The Court assessed the offence as one of grave objective seriousness. The attack was premeditated: the weapon had been prepared in advance, the offender deliberately paused when officers attended so he could resume the assault, and he described his actions to police in terms of calculated, cold-blooded "tactical" violence. The Court was satisfied beyond reasonable doubt that the offender intended to kill the victim, and that the claimed provocation amounting to a threat by the victim was not borne out by the objective facts.

Applying the test under the Crimes (Sentencing Procedure) Act 1999 (NSW) for the imposition of a life sentence, the Court was satisfied beyond reasonable doubt that the level of culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met by imprisonment for life. The prior murder convictions were directly relevant not merely as aggravating factors but as part of the totality of circumstances bearing on whether the maximum penalty was warranted. The Court drew on High Court authority in Veen v The Queen (No 2) to confirm that prior offences are relevant to this assessment, even though a sentence cannot be increased beyond what is proportionate to the instant offence.

The subjective case offered very little mitigation. The guilty plea attracted some discount, but the Court noted the offender had shown no remorse and had, in his police interview, expressed indifference to the victim's death. His physical conditions, including partial deafness, blindness in one eye, and injuries from a prior prison assault, did not persuade the Court to impose a lesser sentence. The Court concluded a life sentence was the only appropriate outcome.

Orders Made

  • The offender was convicted of the murder of the victim and sentenced to imprisonment for life.

Key Takeaways

  • Sentencing for a further murder committed by an offender already serving life sentences retains independent purpose, particularly to acknowledge the victim's life and the suffering of the victim's family.
  • A life sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to be satisfied beyond reasonable doubt that the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the maximum penalty.
  • Prior murders, while not a basis for increasing a sentence beyond what is proportionate to the instant offence, are relevant to the overall assessment of whether a life sentence is warranted.
  • Evidence of premeditation, including concealing a weapon and deliberately deceiving prison officers mid-attack, significantly elevated the objective seriousness of the offence in the Court's assessment.
  • Physical health conditions and a guilty plea may carry mitigating weight in principle, but neither consideration displaced the life sentence where the culpability was assessed as extreme and no genuine remorse was demonstrated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A(2)(d), Pt 4 Div 1A Table item 1, 54D(1)(a), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4

Cases
- R v Walsh [2009] NSWSC 764
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
- R v Kaewklom (No 3) [2013] NSWSC 59
- Yeung v R [2018] NSWCCA 52
- R v Penisini [2004] NSWCCA 339
- R v Miles [2002] NSWCCA 276
- R v Harris (2000) 121 A Crim R 342; [2000] NSWCCA 469
- R v Rose [1999] NSWCCA 327