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Supreme Court 14 December 2018

R v Wood

[2018] NSWSC 1855

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW OFFENCES SENTENCE MURDER HISTORY OF DOMESTIC VIOLENCE OFFENCES

Citation: R v Wood [2018] NSWSC 1855
Court: Supreme Court of NSW
Date: 14 December 2018
Judge: Bellew J

Background

The offender, a 26-year-old man, pleaded guilty on 5 October 2018 to the murder of his 34-year-old partner, committed on 30 September 2017 at Whalan in western Sydney. The deceased was the mother of five children, the three youngest of whom lived with her. The couple had been in an intermittent relationship since approximately October 2015, characterised throughout by domestic violence, including repeated assaults and strangulation.

On the evening of the offending, the offender and the deceased had spent several hours drinking together, first at her home and then at a local hotel. The offender had also consumed alcohol earlier that day. The deceased died from stab wounds. The autopsy revealed widespread bruising across her body in addition to the fatal injuries. In a conversation with police shortly after the offending, the offender admitted he had "choked out" the deceased, causing her to lose consciousness.

The offender also asked the court to take into account, on a Form 1 (a document that allows related offences to be considered in fixing the principal sentence without recording separate convictions), a contemporaneous contravention of an Apprehended Violence Order (AVO) that had been in place to protect the deceased.

  • Whether the offender acted with an intention to kill, or with some lesser mental state
  • Whether intoxication operated as an aggravating factor given the offender's history of alcohol-related and domestic violence offending
  • Whether the offending was aggravated by gratuitous cruelty, having regard to the bruising and the admitted strangulation in addition to the fatal stab wounds
  • What weight to give the victim impact statements, and whether they could be considered under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as harm to the community
  • What sentence was appropriate, having regard to the multiple aggravating factors, the offender's significant criminal history, and the applicable principles of general and specific deterrence

Decision

Bellew J found that the offender had acted with an intention to kill the deceased. That finding, combined with the domestic violence context and the offender's prior record, including previous breaches of AVOs, placed the offending at a serious level of culpability.

On the question of intoxication, the court held that it operated as an aggravating factor rather than a mitigating one. The offender had a history of alcohol-related offending, including domestic violence committed while intoxicated, and must have been aware of the connection between his alcohol consumption and his propensity for violence. His intoxication on the night of the offending was therefore characterised as reckless.

The court also found the offending was aggravated by gratuitous cruelty. The autopsy revealed widespread bruising beyond what the stab wounds alone would explain, and the offender's own admissions confirmed he had strangled the deceased to the point of unconsciousness. That conduct, in addition to the fatal stabbing, constituted cruelty beyond what was inherent in the murder itself.

The victim impact statements from two of the deceased's five children were admitted and considered under s 28(4) of the Sentencing Act, on the basis that any murder causes harm to the community. Bellew J expressly acknowledged the profound and ongoing impact of the deceased's death on her children, including serious mental health consequences for at least one of them. The Form 1 AVO contravention was taken into account in the usual way, producing a longer sentence than the murder charge alone would have attracted.

Orders Made

  • The offender was convicted of murder.
  • A sentence of 25 years and 6 months imprisonment was imposed, commencing 30 September 2017 and expiring 29 March 2043.
  • A non-parole period of 19 years and 1 month was specified, expiring 29 October 2036.
  • The offender will be eligible for parole on 29 October 2036.

Key Takeaways

  • Intoxication is not automatically a mitigating factor in sentencing for murder. Where an offender has a known history of becoming violent when drunk, and particularly where that history includes domestic violence, intoxication may instead aggravate the offence on the basis that the offender was reckless in consuming alcohol.

  • Gratuitous cruelty as an aggravating factor requires conduct beyond what is inherent in the principal offence. The Supreme Court found that widespread bruising and admitted strangulation, on top of the fatal stab wounds, satisfied that threshold.

  • Under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), victim impact statements from family members of a murder victim may be received and considered as evidence of harm to the community, not merely harm to the individuals concerned.

  • A Form 1 offence must produce a measurably longer sentence than would have been imposed for the principal offence standing alone. Bellew J reaffirmed that courts have consistently rejected any approach that treats the Form 1 as having little or no practical effect on the sentence.

  • Prior breaches of AVOs, a history of domestic violence, and offending committed while on conditional liberty each operate as distinct statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) and can cumulatively elevate a sentence significantly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28(4), 44(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1914 (Cth), s 20(1)(b)
- Criminal Code 1995 (Cth)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- RL v R [2018] NSWCCA 174
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Abbas, Bodiotis Taleb and Amoun v R [2013] NSWCCA 115
- R v Medich (No 43) [2018] NSWSC 886
- R v Coleman (1990) 47 A Crim R 306
- Stanford v R [2007] NSWCCA 73
- Mendes v R [2012] NSWCCA 103
- Cherry v R [2017] NSWCCA 150
- R v Qutami [2001] NSWCCA 353
- R v Thomson; R v Houlton (2000) 49 NSWLR 383