Citation: R v Hickson (No 4) [2020] NSWSC 340
Court: Supreme Court of New South Wales
Date: 3 April 2020
Judge(s): Davies J
Background
On the night of 21 to 22 December 1989, a 72-year-old bookmaker was murdered in the garage of his home in Woolwich, NSW, after returning from an evening race meeting at Dapto. He was stabbed multiple times and suffered blunt force injuries. His bookie bags were found open on the garage floor, and approximately $3,000 remained in his shirt pocket.
Despite extensive investigation in the early 1990s, no charges were laid. A 2016 cold case review sent retained crime scene samples to the NSW Forensic and Analytical Science Service. DNA profiles developed from inside the car boot and from a tape lift of the deceased's sock were uploaded to the National Criminal Investigation DNA Database.
In June 2017, a DNA sample taken from the offender in connection with unrelated matters matched the crime scene profiles. That match, combined with statements from the offender's former partner and two associates, led to his arrest in November 2017. The offender stood trial in November 2019 and was convicted of murder by a jury on 5 December 2019.
Legal Issues
- What sentence should be imposed for a murder committed in 1989, given that the sentencing framework at the time of the offence did not include a standard non-parole period?
- How should significant delay between the offence and sentencing be weighed?
- What aggravating and mitigating factors applied to the sentence?
- Did the offender's age and poor health constitute special circumstances justifying a departure from the standard ratio between the head sentence and non-parole period?
Decision
Applicable sentencing law. Because the offence was committed in December 1989, Davies J was required to sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) as it existed before the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 came into force. That meant no standard non-parole period applied. The court was required to set a head sentence first and then fix the non-parole period separately under s 44 of the unamended Act.
Aggravating factors. The murder involved significant planning: the offender had stalked the victim for one to two months, followed him home from Dapto, and on the night of the killing took with him a bag containing a balaclava, overalls, and a dagger-style knife. The offence was committed in the victim's home, with a weapon, in the course of a robbery for financial gain. The victim resisted, was beaten and stabbed, then bound, gagged, and left to die. The offender made no attempt to raise the alarm after leaving. The offender had a lengthy criminal record both before and after the murder, showed no remorse, and was assessed as having poor prospects of rehabilitation.
Mitigating factors and delay. The court acknowledged the significant delay of over 30 years between the offence and sentencing. While the delay was not attributable to the offender evading justice in any active sense, the court noted that the delay was relevant to the weight given to rehabilitation and to the practical effect of the sentence on an older person. The offender's age and multiple health conditions were accepted as warranting a finding of special circumstances, given the risk he might die in custody.
Deterrence. General deterrence carried significant weight given the nature of the offending: an ambush of a victim in his own home who was killed after resisting a planned robbery. The need for specific deterrence was somewhat reduced by the offender's advanced age, which meant he would be elderly upon any release to parole.
Orders Made
- The offender was convicted of the murder of Charles Skarratt on 21/22 December 1989.
- Sentenced to a term of imprisonment of 22 years, commencing 2 November 2017 and expiring 1 November 2039.
- Non-parole period of 15 years, expiring 1 November 2032; first eligible for parole on 1 November 2032.
- The offender was warned that the State may apply for an order under the Crimes (High Risk Offenders) Act 2006 (NSW) before his sentence expires, given his conviction for a serious violence offence.
Key Takeaways
- Where a murder was committed before the 2002 standard non-parole period reforms, the sentencing court must apply the law as it stood at the time of the offence, setting the head sentence before fixing the non-parole period under the unamended s 44 of the Crimes (Sentencing Procedure) Act 1999.
- A cold case conviction arising from a DNA match does not automatically reduce culpability or warrant leniency; the delay between offence and sentencing is a relevant factor, but is weighed against the full range of aggravating circumstances.
- Substantial pre-sentence planning, including surveillance of the victim over weeks, use of a purpose-brought weapon, and commission of the offence in the victim's home for financial gain, were each treated as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.
- Special circumstances, justifying a departure from the ordinary ratio of non-parole period to head sentence, were established by a combination of the offender's age and serious health conditions, with the court directing attention to whether the offender was likely to die in custody.
- A lengthy post-offence criminal record and an absence of remorse were weighed against the offender in assessing prospects of rehabilitation and the need for community protection.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), No 90, Schedule 2, cll 37 and 45
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases:
- R v Neale (cited in the context of the risk of an offender dying in custody and the assessment of special circumstances; full citation not provided in the judgment text)