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Supreme Court 15 November 2018

R v O’Connor

[2018] NSWSC 1734

Homicide
SENTENCING MURDER BODY OF ONE VICTIM BURNED NOT GUILTY PLEA WHETHER LIFE SENTENCE SHOULD BE IMPOSED

Citation: R v O'Connor [2018] NSWSC 1734
Court: Supreme Court of New South Wales
Date: 15 November 2018
Judge: R A Hulme J

Background

A jury found the offender guilty of three counts of murder arising from events at Hermidale, a small village in central western New South Wales, on the night of 25 to 26 June 2015. The offender, aged 61 at the time, had been in a relationship with one of the victims, a woman aged 36, and was described by witnesses as besotted with her. When he learned she had left the local hotel with another man, with whom she had been exchanging sexually explicit messages, he drove to that man's remote rural property.

At the property, the offender shot the man he believed had taken his girlfriend, shooting him in the chest with a shotgun. He then shot the man's adult son and his girlfriend in the head. All three deaths were immediate. The offender subsequently set fire to the caravan in which one victim's body lay, leaving very little of the remains.

The defence case was that the offender was not the perpetrator and raised alternative theories pointing to others with possible motives. The sentencing judge rejected all alternative theories as speculative, noting that none could explain why another person with a motive to kill would have acted on the very same night that a motive arose in the offender.

  • Whether the objective gravity of the three murders, considered individually and collectively, placed them within the worst-case category.
  • Whether the offender's level of culpability was so extreme as to warrant the imposition of life sentences under s 19A(2) of the Crimes Act 1900 (NSW).
  • Whether the principles governing sentencing for multiple murders committed at the same time and place applied where the offender had different purposes for killing different victims.
  • What weight, if any, should be given to mitigating personal factors such as the absence of a significant prior criminal record and prior good character.

Decision

Hulme J found that the offender was motivated by jealousy and humiliation. He had been expressly told by a witness, during a conversation earlier that evening, that his girlfriend had left the hotel with the man who had previously taken another partner from him. The offender made a threat at that time to shoot both of them if they came to his place. The judge was satisfied beyond reasonable doubt that the offender then armed himself and drove to the property to carry out that threat.

On the question of the multiple-murder sentencing principles, the Court applied the approach from Adanguidi v R [2006] NSWCCA 404, which holds that where multiple murders are committed at the same time and place, the whole of the conduct is relevant to assessing culpability for each offence. The defence sought to distinguish that case on the basis that the offender had a different purpose in killing the son compared to the other two victims. Hulme J rejected this distinction as one of no legal significance, finding no authority supporting a different approach in such circumstances.

The Court found that a small number of matters personal to the offender, including his lack of significant prior record and previously favourable character, existed but were insufficient to mitigate the sentences. Community protection and future dangerousness were not treated as relevant sentencing factors. Deterrence, retribution, and punishment were each identified as strongly compelling considerations given the gravity of the crimes.

Hulme J was satisfied beyond reasonable doubt that the offender's culpability was at such an extreme level that the community's interest in deterrence, retribution, and punishment could only be served by sentences of life imprisonment. The crimes were found, individually and collectively, to fall squarely within the worst-case category.

Orders Made

  • The offender was convicted of the murders of each of the three victims.
  • Upon each conviction, the offender was sentenced to imprisonment for life.

Key Takeaways

  • A life sentence under s 19A(2) of the Crimes Act 1900 (NSW) means imprisonment for the term of the offender's natural life, with no possibility of release.
  • Where multiple murders are committed at the same time and place, the sentencing court may consider the totality of the conduct when assessing culpability for each offence, following the principle in Adanguidi v R.
  • The absence of a significant prior criminal record and prior good character, while recognised as mitigating factors, will not necessarily reduce a sentence when the objective gravity of the offending is extreme.
  • Deterrence, retribution, and punishment were identified as the dominant sentencing considerations for murders of this nature, with community protection and future dangerousness assessed as not separately relevant on the particular facts.
  • In dismissing the defence's attempt to distinguish Adanguidi v R, the Supreme Court confirmed that differing purposes for killing different victims in a multiple murder at the same time and place do not require a materially different sentencing approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA), Pt 4 Div 1A, s 61

Cases
- Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295
- Dean v R [2015] NSWCCA 307
- R v Stanford, Vincent [2016] NSWSC 1434