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Supreme Court 5 March 2018

R v JK

[2018] NSWSC 250

Assault & violenceHomicideDomestic & family violence
CRIME SENTENCING PLEA OF GUILTY TO MURDER TORTURE AGGRAVATING CIRCUMSTANCES GRATUITOUS CRUELTY

Citation: R v JK [2018] NSWSC 250
Court: Supreme Court of New South Wales
Date: 5 March 2018
Judge: Hamill J

Background

The offender was convicted of the murder of CN, a 12-year-old girl, who died on 22 September 2015. The offender had been in a domestic relationship with CN's mother and had assumed a parental role over CN and her sister, NZ. Over several years, he subjected both girls to escalating physical violence, with CN bearing the most severe abuse.

In the final days of CN's life, the offender tied her to a bed and beat her repeatedly over three days, delivering blows with sufficient force to cause fatal injuries from blunt force trauma. CN had already suffered a fractured jaw and lost a tooth in an earlier assault in July 2015, an offence the offender admitted and asked to be taken into account on sentencing. Throughout the years of violence, neither girl received medical attention; instead, they were kept home from school until their injuries healed.

The Crown submitted, with appropriate circumspection, that this was a case warranting a life sentence. The sentencing judge was required to determine whether that extreme threshold had been met, or whether a lengthy determinate sentence was the appropriate outcome.

  • Whether the offending met the statutory threshold for a mandatory life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999, that is, whether no other sentence would adequately satisfy the purposes of punishment.
  • How to weigh the multiple aggravating factors, including gratuitous cruelty, the victim's age and vulnerability, the use of weapons, the commission of the offence in the victim's home, and the presence of another child.
  • What mitigating weight, if any, to give to the offender's demonstrated remorse and insight, including an extraordinary letter he wrote to his lawyers declining further investigation of possible defences.
  • How to treat the offender's depression and self-induced intoxication through alcohol self-medication as sentencing considerations.
  • Whether the offender's lack of an intention to kill was a relevant mitigating factor.

Decision

Hamill J found the offending to be of extreme gravity, involving prolonged torture of a child who was utterly vulnerable and dependent on the offender for her protection and care. The aggravating factors were numerous and serious: the sustained and systematic nature of the violence, the use of weapons, the deliberate muffling of the child's screams, the commission of acts in the family home, the presence of another child, and what the court characterised as gratuitous cruelty. The judge noted that TP, the child's mother, had warned the offender that his assaults could kill CN, yet the violence continued.

The court gave careful consideration to the question of a natural life sentence. Hamill J accepted that the case was of the utmost gravity but ultimately concluded that a determinate sentence, albeit a very long one, remained capable of reflecting the community's interest in retribution, punishment, deterrence and community protection. The availability of the Crimes (High Risk Offenders) Act 2006 as a protective mechanism was noted as a relevant consideration. The court did not impose a life sentence.

The offender's extraordinary letter to his lawyers, in which he expressed genuine remorse and refused to allow further investigation of possible defences, was treated as demonstrative of real insight. This was given genuine mitigating weight, as was his depression, though the court was careful to distinguish between a clinical condition and the consequences of self-induced intoxication, which carried limited mitigating force. The absence of an intention to kill was also accepted as a mitigating factor in the context of a murder charge.

The standard non-parole period of 25 years applied under the legislation, given that the victim was a child. The court applied the relevant sentencing principles without using s 21A as a mechanical checklist, and took care to avoid double-counting aggravating factors.

Orders Made

• JK convicted and sentenced to murder with a non-parole period of 28 years commencing 23 September 2015 and expiring 22 September 2043
• Balance of term of 9½ years commencing 23 September 2043 and expiring 22 March 2053
• Offences dealt with pursuant to ss 166-167 Criminal Procedure Act 1986 dismissed

Key Takeaways

  • A natural life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999 remains reserved for cases where no other penalty can satisfy the purposes of sentencing; even extreme and horrific offending does not automatically cross that threshold.
  • The Supreme Court recognised that the availability of post-sentence supervision under the Crimes (High Risk Offenders) Act 2006 is a relevant consideration when assessing whether a determinate sentence can adequately protect the community.
  • Genuine remorse and insight, demonstrated in concrete and unusual ways, such as a written refusal to pursue available defences, can carry real mitigating weight at sentencing even for the most serious offences.
  • Depression as a clinical condition may reduce moral culpability, but courts treat self-induced intoxication through alcohol as carrying significantly less mitigating force; the two are not treated equivalently.
  • Where an offender lacked an intention to kill, that remains a relevant mitigating consideration even on a murder charge, though its weight is assessed against all other circumstances of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19A, 21, 21A, 28, 32, 37, 44, 61, 166, 167
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Engert (1995) 84 A Crim R 67
- R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774
- Devaney v R [2012] NSWCCA 285
- Luque v R [2017] NSWCCA 226
- Akkawi v R [2012] NSWCCA 11
- R v Israli [2002] NSWCCA 255
- R v Hines (No 3) [2014] NSWSC 1273
- R v Do (No 4) [2015] NSWSC 512
- R v Halloun [2014] NSWSC 1705
- R v Kelsall [2015] NSWSC 480
- Ghamraoui v R [2009] NSWCCA 111
- R v Coulter [2005] NSWSC 101
- R v Mehta [2009] NSWSC 814
- R v Ross [2014] NSWSC 707
- R v Maybir (No 8) [2016] NSWSC 166
- R v Lock [2017] NSWSC 715