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Supreme Court 10 December 2020

R v Ryan (No 4)

[2020] NSWSC 1629

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE SUBSTANTIAL IMPAIRMENT NOT ESTABLISHED FATAL DOMESTIC VIOLENCE UNPLANNED AND FRENZIED STABBING INTENTION TO KILL

Citation: R v Ryan (No 4) [2020] NSWSC 1629
Court: Supreme Court of New South Wales
Date: 10 December 2020
Judge(s): Button J

Background

The offender, a man aged 64 at the time of the offence, was sentenced following his conviction for the murder of his long-term former partner in her home in Tweed Heads on 12 November 2018. The couple had been in a romantic relationship spanning decades and had two adult sons together, but the intimate relationship had ended in the months before the killing, partly due to the offender's chronic alcoholism and prescription drug dependence. The deceased had begun a new romantic relationship and was planning to start a new life with her new partner the following day.

In the weeks before the murder, the offender had made recorded telephone threats of physical violence against the deceased if she did not end her new relationship. Police had attended the couple's shared apartment two weeks before the killing following threatening behaviour by the offender, leading to a provisional AVO. That AVO was extended as an interim order by a Magistrate on the very morning of the murder.

The offender stabbed the deceased repeatedly in her kitchen using at least two knives, disregarding her pleas. Prior to or during the attack, he held a knife to her throat and forced her to telephone relatives, demanding they dissuade her from leaving him. He was convicted of murder after a judge alone trial, having pleaded guilty to manslaughter at the outset on the basis that the partial defence of substantial impairment should reduce the charge.

  • Whether the partial defence of substantial impairment had been established on the balance of probabilities, so as to reduce the murder to manslaughter (resolved at verdict stage; maintained on sentence)
  • The objective seriousness of the murder for sentencing purposes
  • What weight to give mitigating subjective factors, including the offender's age, brain damage from chronic alcoholism, mood disorder, loss of control, and minimal criminal history
  • Whether any sentencing credit was available despite the absence of a utilitarian discount for a guilty plea to the higher charge
  • The appropriate head sentence, non-parole period, and commencement date for the murder conviction, and the concurrent sentence for breaching the AVO

Decision

Button J assessed the murder as extremely grave in objective terms. Although the killing was unplanned and carried out in a frenzy using kitchen knives rather than purpose-brought weapons, it occurred in flagrant breach of a court order imposed that very morning to protect the deceased. The attack was sustained, inflicted on an unarmed woman in her own home, and the number and location of wounds demonstrated an unequivocal intention to kill. Two people close to the deceased, connected by telephone during the attack, were tormented by being made aware of it as it occurred.

On subjective matters, the court accepted that the offender suffered brain damage caused by chronic alcoholism, a mood disorder, and loss of control, and that these contributed to the offence. However, these were secondary factors. The primary drivers of the killing were jealousy and anger, expressed through threats made weeks earlier that the offender ultimately carried out. The court found the offender had accepted the enormity of his actions and had good prospects for rehabilitation if released, though personal deterrence was of little practical significance given his age.

The court acknowledged the offender's near-clean criminal record and gave him some credit for never disputing the homicide and for his legal team's approach at trial, even though no utilitarian discount for a plea of guilty was available. No credit of that kind arises where the offender is convicted of the higher charge he contested.

Denunciation and general deterrence carried substantial weight in the sentencing exercise, given the nature of the killing as a fatal domestic violence offence motivated by the deceased's refusal to comply with the offender's demands. Button J acknowledged that the sentence imposed could well result in the offender dying in custody, but held that outcome was the inevitable consequence of the gravity of the crime and the offender's age at the time of committing it.

Orders Made

  • Conviction entered for murder
  • Conviction entered for breaching an apprehended violence order
  • Fixed term of 18 months imprisonment for the AVO breach, commencing 12 November 2018
  • For murder: non-parole period of 17 years commencing 12 November 2018, followed by a parole period of 6 years commencing 11 November 2035 and expiring 11 November 2041 (head sentence of 23 years)
  • The AVO breach sentence to be served concurrently with the murder sentence
  • Earliest eligible parole date: 11 November 2035

Key Takeaways

  • The Supreme Court assessed the murder as objectively extremely grave, notwithstanding that it was unplanned and frenzied, because it was committed in breach of an AVO, was motivated by the deceased's exercise of her own autonomy, and involved a prolonged and agonising attack on an unarmed woman in her own home.
  • A partial defence of substantial impairment requires the impairment to be substantial, not merely present. The court at verdict declined to find that brain damage from chronic alcoholism or a mood disorder crossed that threshold, and those findings were maintained unchanged on sentence.
  • Cognitive impairment, depression, and loss of control accepted as genuinely contributing to an offence may still be treated as secondary factors where the evidence establishes that jealousy and controlling behaviour were the primary drivers.
  • No utilitarian discount for a guilty plea is available where the offender pleads guilty to the lesser charge but is ultimately convicted of the higher charge at trial. Some lesser credit may nonetheless be given for the offender's consistent non-denial of the homicide and the conduct of the defence.
  • General deterrence and denunciation carry particularly significant weight in sentencing for fatal domestic violence offences involving threats to punish a partner for exercising personal autonomy, and may justify a sentence that the court openly acknowledges may result in the offender dying in custody.

Legislation and Cases Referenced

Cases:
- R v Ryan (No 3) [2020] NSWSC 142 (reasons for verdict in the same proceeding)

Legislation:
- No specific legislative provisions were identified by name in the provided text, though the decision refers to the maximum penalty for murder (life imprisonment without parole) and the standard non-parole period (20 years), and to the maximum penalty for breaching an AVO (2 years imprisonment).