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Supreme Court 6 November 2020

R v Close (No 2)

[2020] NSWSC 1565

Homicide
CRIMINAL LAW SENTENCE CONVICTION OF MURDER AFTER JUDGE ALONE TRIAL SELF INDUCED INTOXICATION

Citation: R v Close (No 2) [2020] NSWSC 1565
Court: Supreme Court of New South Wales
Date: 6 November 2020
Judge: Button J

Background

The offender, an Aboriginal man aged 31 at the time, was convicted of murdering an elderly and frail man in his home in Nowra in the early hours of 23 February 2018. The deceased was a known acquaintance who occasionally supplied small quantities of prohibited drugs to people in the local community. The offender had returned to the Nowra area in breach of bail conditions, re-entering a social environment involving heavy alcohol use and illicit drug consumption.

On the night in question, the offender had consumed alcohol over many hours, as well as what was likely methamphetamine and an opioid. He arrived at the deceased's home seeking drugs, found none available, and in a mounting frenzy inflicted at least 50 stab wounds. The deceased, who was physically frail and defenceless, died in his own home from those injuries. The death was not instantaneous and would have been terrifying and painful.

At trial, the offender had entered a plea of not guilty to murder but guilty of manslaughter. Following a judge-alone trial held in Nowra, Button J returned a verdict of guilty of murder on 6 August 2020. Sentencing proceedings were conducted in Sydney on 23 October 2020.

  • What was the appropriate sentence for a murder conviction arising from a frenzied, spontaneous, intoxication-affected attack on a defenceless victim?
  • How should the offender's self-induced intoxication be weighed in assessing both objective seriousness and subjective circumstances?
  • Whether special circumstances existed that would justify a departure from the standard ratio between the non-parole period and the head sentence.
  • How to account for the offender's deprived upbringing, significant criminal history involving serious violence, and complete amnesia of the offence.

Decision

Button J assessed the murder as a very serious example of the gravest offence known to law. The deceased was a sick, weak, and defenceless older man killed in his own home by someone he trusted and who had not forced entry. Although the offence was spontaneous and unplanned, and arose from nothing more than the frustration of a drug-dependent person, the violence was extreme and an intention to kill was established. The court found that, despite gross intoxication and a state of frenzy, the offender must at some stage during the attack have appreciated that he was bringing about the victim's death.

The subjective circumstances were considered in detail. The offender had experienced a significantly disadvantaged upbringing, including exposure to domestic violence, repeated schooling disruptions, and longstanding substance dependency. His criminal history featured serious violence. The court also noted the offender's complete amnesia of the offence, his addiction, and the connection between his deprived background and the circumstances of the killing.

Button J found that special circumstances existed, justifying a parole period that is proportionally longer than the standard. The resulting head sentence of 21 years with a non-parole period of 14 years reflected both the gravity of the offence and the totality of the offender's circumstances. The earliest possible release to parole would be 23 February 2033.

Orders Made

  • Reckless damage: fixed term of three months' imprisonment, commencing 24 February 2019 and expiring 23 May 2019.
  • Common assault: fixed term of six months' imprisonment, commencing 24 February 2019 and expiring 23 August 2019.
  • Murder: head sentence of 21 years' imprisonment, with a non-parole period of 14 years commencing 24 February 2019, followed by a parole period of 7 years expiring 23 February 2040; partly concurrent with a pre-existing aggregate sentence.
  • Earliest eligible parole date: 23 February 2033.

Key Takeaways

  • Spontaneity and gross intoxication do not preclude a finding of intention to kill where the evidence establishes that the offender must, at some point during a prolonged attack, have appreciated that death was being brought about.
  • A frenzied attack inflicting at least 50 wounds on a defenceless, frail victim in his own home placed this murder at the very serious end of the sentencing spectrum, notwithstanding the absence of planning or premeditation.
  • Special circumstances were established, permitting the court to set a parole period proportionally greater than the standard, in light of the offender's background, his addiction, and his rehabilitation needs.
  • Self-induced intoxication does not operate as a mitigating factor in itself; the court assessed it as part of the objective circumstances that shaped the offence rather than as a reason to reduce moral culpability.
  • A deprived upbringing, exposure to domestic violence, chronic substance dependency, and significant disruption to education were all recognised as relevant subjective factors, though they did not alter the fundamentally serious character of the offending.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the provided text. The standard non-parole period of 20 years for murder and the jurisdictional limits for reckless damage and common assault were referenced in the sentencing exercise.

Cases:
- No cases were cited in the provided text.

Cross-reference: Button J's reasons for verdict (R v Close [2020] NSWSC, available at https://www.caselaw.nsw.gov.au/decision/173bd2c02e0131bf96caa5ba) contain detailed factual findings and are incorporated by reference into the sentencing remarks.