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Supreme Court 29 November 2019

R v Harwood

[2019] NSWSC 1695

Homicide
CRIMINAL LAW GUILTY PLEA SENTENCE MURDER VICTIM IMPACT STATEMENT OBJECTIVE FEATURES

Citation: R v Harwood [2019] NSWSC 1695
Court: Supreme Court of New South Wales
Date: 29 November 2019
Judge(s): Walton J

Background

In December 2017, a 19-year-old man stabbed his 67-year-old grandmother to death at her home in South Penrith. The offender was arrested five days later and has been in custody since 7 December 2017. He pleaded guilty to murder in the Penrith Local Court on 12 October 2018.

The facts were agreed between the parties. The killing involved a high level of violence, a weapon, and took place in the victim's own home. There was no premeditation or planning. The offender had no prior criminal record and no history of violence, and the court received evidence about his mental health, including a diagnosis of borderline personality disorder.

Victim impact statements from the deceased's two daughters were placed before the court. Both described profound and continuing grief, including distress felt by the deceased's grandchildren.

  • Whether this was a "worst case" murder warranting a sentence of life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The appropriate assessment of the objective seriousness of the offence relative to the standard non-parole period of 20 years
  • How the offender's mental disorder (borderline personality disorder) affected his moral culpability
  • Whether special circumstances existed justifying a departure from the standard statutory ratio between the non-parole period and the balance of term
  • The weight to be given to mitigating factors, including youth, guilty plea, remorse, and the absence of any criminal history

Decision

Walton J accepted the Crown's submission that this was not a case for life imprisonment. While the offence was objectively serious, factors reducing the offender's moral culpability included the absence of premeditation, his mental disorder, his youth, the guilty plea, demonstrated remorse, and his clean criminal record. A finite term was therefore appropriate.

In assessing objective seriousness, the court identified several aggravating features under s 21A of the Crimes (Sentencing Procedure) Act 1999: the use of a weapon (a knife), the high level of violence involved, and the fact that the offence was committed at the victim's home. These features elevated the seriousness of the offence on the spectrum of murders.

On the question of moral culpability and mental disorder, the court acknowledged that the offender's borderline personality disorder was relevant to the weight to be given to general deterrence and to the assessment of his culpability, though it did not eliminate responsibility. The court also took into account that a custodial sentence may weigh more heavily on the offender given his mental health condition and his age.

The Crown conceded, and Walton J accepted, that special circumstances existed within the meaning of s 44 of the Sentencing Act. This justified a modest downward adjustment to the non-parole period, increasing the proportion of the sentence to be served on parole. The court was mindful of the need for supervision and psychological treatment upon the offender's eventual release, given his mental disorder and the need to readjust to community life.

Orders Made

  • The offender was convicted of the murder of Pauline Farrugia.
  • Sentenced to imprisonment with a non-parole period of 12 years, commencing 7 December 2017 and expiring 6 December 2029.
  • Balance of term of 4 years and 6 months, commencing 7 December 2029 and expiring 6 June 2034.
  • Total sentence: 16 years and 6 months.
  • Eligible for release on parole on 6 December 2029.
  • The offender was advised of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C of that Act.

Key Takeaways

  • Absent particular features of very great heinousness and the absence of any mitigating objective circumstances, a murder will not fall into the "worst case" category attracting a mandatory life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999.
  • A borderline personality disorder diagnosis bears on the assessment of moral culpability and the weight accorded to general deterrence, even where it does not eliminate criminal responsibility.
  • Under the instinctive synthesis required by Markarian v The Queen (2005) 228 CLR 357, both the maximum penalty and the standard non-parole period of 20 years for murder serve as legislative guideposts, but neither operates mechanically; all objective and subjective factors must be balanced.
  • Special circumstances were established where the offender was a first-time prisoner, was young, had good rehabilitation prospects, and required ongoing psychological treatment, justifying a departure from the standard statutory ratio between the non-parole and parole portions of the sentence.
  • Victim impact statements, while not determinative of sentence, serve the recognised function of giving texture to the harm done to the victim's family and to the community, in accordance with the sentencing purpose in s 3A(g) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 25C, 30A, 30B, 44, 54A, 54B, 61(1), Pt 4 Div 1A Table
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554
- SW v R [2013] NSWCCA 103
- R v Halloun [2014] NSWSC 1705
- Sumpton v R [2016] NSWCCA 162
- R v Scott [2005] NSWCCA 152
- Apps v R [2006] NSWCCA 290
- BM v R [2019] NSWCCA 223
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Charbaji v R [2019] NSWCCA 28
- GG v R [2018] NSWCCA 280
- Johnson v R [2016] NSWCCA 286
- McDowall v R [2019] NSWCCA 29
- R v Hearne (2001) 124 A Crim R; [2001] NSWCCA 37
- R v Lawrence [2005] NSWCCA 91
- R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
- R v Wright (1997) 93 A Crim R 48