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Supreme Court 21 February 2020

R v Lord

[2020] NSWSC 82

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MANSLAUGHTER WHERE ORIGINALLY CHARGED WITH MURDER WHERE ACT WAS INTENTIONAL WHERE LIMITED EVIDENCE OF REMORSE

Citation: R v Lord [2020] NSWSC 82
Court: Supreme Court of New South Wales
Date: 21 February 2020
Judge(s): Harrison J

Background

The offender, a concreter in his mid-fifties, was originally charged with the murder of his wife of approximately 25 years. The alleged killing occurred on 20 October 2015 at Tumbulgum, New South Wales. The offender was not arrested until February 2017 and remained in custody from that date.

The agreed facts disclosed a troubled marriage, a concealed extramarital affair with a live-in housemaid, and escalating domestic tension in the weeks leading to the death. The deceased had consulted a solicitor about divorce proceedings, reported to police that her husband had attempted to drug her, and employed a private investigator. On the day she died, the couple had spent the day travelling together along the coast before an altercation occurred.

On the third day of a five-week murder trial listed in Lismore, the offender offered to plead guilty to manslaughter. The Crown accepted the plea in full discharge of the indictment, and the matter came before Harrison J for sentencing on that charge.

  • What objective seriousness attached to this particular manslaughter, given the nature of the unlawful and dangerous act and the domestic violence context?
  • What weight should be given to the late guilty plea, and what discount (if any) applied to the sentence?
  • Whether the offender demonstrated genuine remorse, and how that bore on sentence?
  • What were the offender's prospects of rehabilitation, and did this warrant adjustment of the sentence?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to vary the statutory ratio between the non-parole period and the head sentence?

Decision

Harrison J sentenced the offender for manslaughter by unlawful and dangerous act. The act was intentional and carried an appreciable risk of serious injury. The offence occurred in a domestic violence context, a factor the Court treated as an aggravating circumstance, and the sentence was required to be recorded on the offender's criminal record as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The guilty plea was entered very late, on the third day of trial, after significant resources had been committed to prosecution. The Court allowed a discount for the plea but at a reduced level reflecting its lateness. The Court also found the evidence of remorse to be limited, which similarly moderated any mitigating weight that genuine contrition might otherwise have attracted.

The Court found no basis for specific deterrence, treating the prospect of the offender reoffending in a similar way as remote in the extreme. Rehabilitation prospects were assessed as good, given the absence of any prior recorded history of violence and the likely impact of imprisonment on the offender's future conduct.

On the question of special circumstances, the Court declined to vary the statutory ratio. Although a forensic psychologist had recommended individual therapeutic counselling, the Court was not persuaded that the need for treatment was so pressing as to require an extension of the parole period beyond the standard proportion.

Orders Made

  • The offender was convicted of manslaughter and sentenced to imprisonment for 10 years and 8 months, commencing 27 February 2017 and expiring 26 October 2027.
  • A non-parole period of 8 years was set, expiring 26 February 2025.
  • The offence was directed to be recorded on the offender's criminal record as a domestic violence offence pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • The offender was warned that, as a person convicted of a serious violence offence, the State may apply for an order under the Crimes (High Risk Offenders) Act 2006 (NSW) before the sentence expires.

Key Takeaways

  • A late guilty plea, entered on the third day of trial after significant court and prosecution resources have been consumed, attracts only a reduced discount rather than the full discount available for an early plea.
  • Limited evidence of remorse constrains the mitigating weight a sentencing court can give to that factor, even where rehabilitation prospects are otherwise assessed as favourable.
  • The domestic violence context of a manslaughter operates as a statutory aggravating factor, and the Supreme Court was required to direct that the offence be recorded accordingly on the offender's criminal record.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a recommendation for therapeutic counselling does not automatically establish special circumstances sufficient to vary the standard statutory ratio between the non-parole period and the head sentence.
  • Where a manslaughter involves an intentional act carrying an appreciable risk of serious injury, the objective seriousness of the offence is assessed at a level reflecting both the nature of the act and the domestic context, even in the absence of a prior history of physical violence toward the deceased.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12(2)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases: No cases were cited in the portions of the judgment provided.