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Supreme Court 2 September 2019

R v Washbrook

[2019] NSWSC 1143

Homicide
CRIMINAL LAW SENTENCE MURDER VICTIM IMPACT STATEMENT OBJECTIVE FEATURES OBJECTIVE SERIOUSNESS

Citation: R v Washbrook [2019] NSWSC 1143
Court: Supreme Court of New South Wales
Date: 2 September 2019
Judge: Walton J

Background

The offender pleaded guilty to the murder of Scott Hammond, committed on 29 June 2013 at the deceased's home in Tahmoor, NSW. The plea was entered in March 2019 following case conferences under the Early Appropriate Guilty Plea Scheme, on the basis of agreed facts. The offender had not been arrested until 10 May 2018, nearly five years after the offence.

The agreed facts established that the offender struck the deceased repeatedly to the head with a wooden pole at approximately 11:00am. The blows caused blunt force head injuries resulting in death. At the time, the offender intended to cause grievous bodily harm, satisfying the mental element required for murder under s 18 of the Crimes Act 1900 (NSW). It was agreed the offence was not motivated by theft of cannabis belonging to the deceased.

The sentencing proceedings included a victim impact statement from the deceased's niece, who described lasting psychological harm including post-traumatic stress disorder, relationship difficulties, and impaired work performance following the murder.

  • Whether the offence warranted a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or a finite term
  • How to assess the objective seriousness of the offence, including the relevance of intent (grievous bodily harm rather than intent to kill)
  • What weight to give to aggravating factors, including the commission of the offence at the deceased's home and while the offender was on conditional liberty
  • What weight to give to mitigating and subjective factors, including a deprived background, guilty plea, remorse, and prospects of rehabilitation
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • What role general and specific deterrence should play, given the spontaneous nature of the attack

Decision

Walton J declined to impose a life sentence, finding the Crown had not established that the offender's culpability was so extreme as to satisfy s 61(1) of the Sentencing Procedure Act. A finite term was appropriate, taking into account both the maximum penalty of life imprisonment and the standard non-parole period of 20 years prescribed for murder.

The objective seriousness of the offence was a central dispute between the parties. His Honour assessed the offence as serious but below the mid-range, noting the absence of premeditation, the intent to cause grievous bodily harm rather than to kill, and the spontaneous nature of the attack within the context of a previously supportive friendship. Aggravating features included the commission of the offence at the deceased's home and the fact that the offender was on conditional liberty at the time.

On subjective features, the court gave weight to the offender's deprived background in accordance with the principles established by the High Court in Bugmy v The Queen (2013) 249 CLR 571, as well as his guilty plea, expressed remorse, and prospects of rehabilitation. These factors tempered the weight given to personal deterrence. General deterrence, however, remained a meaningful consideration given the violent nature of the offence.

His Honour found no special circumstances warranting a departure from the standard one-third ratio between the non-parole period and the balance of term. The statutory ratio was considered sufficient to provide the offender with an appropriate period of supervised release.

Orders Made

  • The offender was convicted of the murder of Scott Hammond.
  • Sentenced to a non-parole period of 13 years and 6 months, commencing 10 May 2018 and expiring 9 November 2031.
  • Balance of term of 4 years and 6 months, commencing 10 November 2031 and expiring 9 May 2036.
  • Total sentence: 18 years.
  • Eligible for release on parole on 9 November 2031.
  • The offender was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C of that Act.

Key Takeaways

  • A murder conviction based on an intention to cause grievous bodily harm, without premeditation and arising spontaneously, may be assessed as below the mid-range of objective seriousness, even where the attack was sustained and fatal.
  • Under the sentencing framework confirmed in Muldrock v The Queen (2011) 244 CLR 120, both the maximum penalty and the standard non-parole period function as legislative guideposts to be weighed alongside all objective and subjective factors through an instinctive synthesis.
  • A deprived background, assessed under the principles from Bugmy v The Queen, can reduce the weight given to personal deterrence without eliminating it as a consideration.
  • Victim impact statements do not directly alter the sentence imposed but serve to give texture to the sentencing purpose of recognising harm done to the victim and the community, as confirmed in R v Halloun [2014] NSWSC 1705.
  • No special circumstances were found, and the court applied the standard one-third ratio between the non-parole period and the balance of term, accepting that a lengthy sentence itself provides sufficient time for supervised parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 44, 54A, 54B, 61
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Halloun [2014] NSWSC 1705
- R v Scott [2005] NSWCCA 152
- Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575
- Apps v R [2006] NSWCCA 290
- Beldon v R [2012] NSWCCA 194
- Charbaji v R [2019] NSWCCA 28
- Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330
- McDowall v R [2019] NSWCCA 29
- Perkins v R [2018] NSWCCA 62
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Hillsley (2006) 164 A Crim R 252; [2006] NSWCCA 312
- R v Irwin [2019] NSWCCA 133
- R v Lawrence [2005] NSWCCA 91