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Supreme Court 2 November 2018

R v Russell (No 3)

[2018] NSWSC 1673

Homicide
CRIMINAL LAW SENTENCE MURDER PLEA TO MANSLAUGHTER CONVICTED OR MURDER FINDINGS OF NON

Citation: R v Russell (No 3) [2018] NSWSC 1673
Court: Supreme Court of New South Wales
Date: 2 November 2018
Judge(s): Rothman J

Background

The offender, Kevin James Russell, was charged with the murder of Alan Dempsey on 8 January 2016 in Wollongong. Mr Russell pleaded not guilty to murder but guilty to manslaughter. The sole issue at trial was whether, at the time he stabbed Mr Dempsey, Mr Russell had formed the intention to kill or to cause grievous bodily harm (the mental element required for murder).

Mr Russell was homeless, an alcoholic, and also consumed illegal drugs. On the day of the offence, multiple witnesses described him as the most severely intoxicated they had ever seen him. He had been moving between acquaintances' units in the same residential block and was described variously as "paralytic," "staggering," and "incoherent." He attended the deceased's unit, where a dispute arose over money that had been given to a third party to procure drugs.

After an exchange of increasingly hostile but intermittent banter, Mr Russell picked up a knife that was sitting on a coffee table. Those present largely ignored him because of how drunk he was. While the sole remaining eyewitness had briefly left the room, Mr Russell rose and stabbed Mr Dempsey once in the back. A jury convicted him of murder.

  • Whether the objective seriousness of the murder fell above, at, or below the mid-range for sentencing purposes, given the circumstances of the offending.
  • How the offender's extreme intoxication bore on the assessment of intent and, in turn, on sentencing.
  • What weight should be given to the offender's background of social disadvantage, cognitive dysfunction, and childhood circumstances under the principles in R v Fernando and Bugmy v The Queen (sometimes called the Fernando/Bugmy principles).
  • The operation of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which relates to intoxication as a sentencing consideration.
  • Whether special circumstances existed justifying a non-parole period lower than the statutory ratio.

Decision

Rothman J found that the offending, while constituting murder, was objectively below the mid-range of seriousness. The stabbing involved a single wound inflicted with what experts confirmed required little or no significant force. The knife was not brought to the scene by Mr Russell; it was opportunistically picked up from the coffee table. There was no planning, and the offence arose from a chaotic, heavily intoxicated gathering rather than any premeditated confrontation.

The Court accepted that Mr Russell's extreme level of intoxication severely impaired his capacity to form the requisite intention, and that this intoxication, combined with an underlying cognitive dysfunction, rendered his decision-making almost non-existent at the time. His Honour applied the Fernando/Bugmy principles, recognising that Mr Russell's background of profound social disadvantage and exclusion had contributed to his alcoholism and cognitive state, and that this context must inform the assessment of moral culpability.

On the operation of s 21A(5AA), the Court engaged with the legislative provision concerning self-induced intoxication. His Honour found that, properly construed, the provision did not operate to strip the offender of all mitigation arising from intoxication in the circumstances, particularly where the intoxication was relevant not merely as a moral failing but as a direct feature of the cognitive and intentional landscape at the time of the offence.

The Court found special circumstances warranting a non-parole period substantially lower than the standard statutory ratio. Rehabilitation prospects were described as good, subject to appropriate culturally sensitive programmes in custody and a lengthy, closely supervised period after release. Mr Russell received no discount for a plea or assistance to authorities, but his genuine remorse was acknowledged.

Orders Made

  • Mr Russell was convicted of murder in relation to the death of Alan Dempsey on 8 January 2016 in Wollongong.
  • A finding of special circumstances was made.
  • Sentenced to imprisonment with a non-parole period of 14 years, commencing 8 January 2016 and concluding 7 January 2030.
  • Balance of term of 10 years, concluding 7 January 2040.
  • First eligible for parole on 8 January 2030.
  • A copy of the remarks on sentence was to be forwarded to the Department of Corrective Services.

Key Takeaways

  • Objective seriousness in a murder sentence can fall below mid-range where a single wound was inflicted with minimal force using an opportunistically obtained weapon, with no planning and significantly impaired intent, even where the jury found the requisite mental element for murder.
  • The Fernando/Bugmy principles require a sentencing court to take into account an offender's background of severe social disadvantage and deprivation when assessing moral culpability, even for a serious offence such as murder. This does not excuse the conduct but informs how responsibility is weighed.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, the relationship between self-induced intoxication and sentencing mitigation requires careful analysis; the provision does not automatically foreclose all relevance of intoxication to culpability where it directly affected the formation of intent.
  • Special circumstances within the meaning of sentencing legislation can justify a materially lower non-parole period where lengthy post-release supervision is needed to address entrenched alcohol and drug dependence and to support social reintegration.
  • A sentencing court may find genuine remorse as a mitigating factor even where no plea discount applies, and may assess rehabilitation prospects favourably while still recognising the importance of both general and specific deterrence for offences of this gravity.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A (including s 21A(5AA))
- Crimes Act 1900 (NSW), Part 11A
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- R v Fernando (1992) 76 A Crim R 58
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- R v Coleman (1990) 19 NSWLR 467
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Kennedy v R [2010] NSWCCA 260
- Coco v R (1994) 179 CLR 427; [1994] HCA 15
- Electrolux Home Products Pty Ltd v The Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40
- Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2