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Supreme Court 17 December 2021

R v Newson (No 5)

[2021] NSWSC 1661

HomicideDomestic & family violence
SENTENCING MURDER TRIAL BY JURY VERDICT OF GUILTY TO OFFENCE OF MURDER

Citation: R v Newson (No 5) [2021] NSWSC 1661
Court: Supreme Court of New South Wales
Date: 17 December 2021
Judge: Ierace J

Background

The offender was convicted by jury of murdering Carly McBride, a First Nations woman, on 30 September 2014 at Muswellbrook. The offender and the deceased had been in a relationship for approximately six weeks at the time of her death, having met at a residential drug rehabilitation program in 2013. The Crown case was circumstantial: the offender killed the deceased in a fit of jealousy after dropping her off at the home of her former partner so she could visit her young daughter.

The deceased's remains were not located until 22 months after her disappearance, when they were found in bushland approximately 45 kilometres from Muswellbrook. The offender was arrested in June 2017 and, after a first trial was aborted and COVID-19 delayed proceedings, was convicted at a second jury trial in June 2021.

The sentence hearing took place on 20 September 2021. The offender did not give evidence at trial or at sentencing.

  • What was the offender's intent at the time of the killing, and did the evidence support an intent to kill rather than merely cause grievous bodily harm?
  • What was the appropriate assessment of the offender's moral culpability, including the relevance of his alleged history of child sexual abuse to his patterns of jealousy and anger?
  • Whether the disposal of the deceased's body in bushland constituted an aggravating factor.
  • Whether the offender's substance use disorder, prospects of rehabilitation, and conditional liberty at the time of the offence were relevant to sentencing.
  • Whether the conduct of the defence facilitated the administration of justice so as to warrant a reduction in sentence.
  • How the principle of totality applied given a pre-existing sentence for a separate offence.

Decision

Intent to kill. Ierace J found that the extent and nature of the injuries inflicted, combined with the offender's expertise as a martial arts fighter, supported a finding of intent to kill rather than merely intent to cause grievous bodily harm. The Crown's circumstantial case, accepted by the jury, established that the killing arose from jealousy directed at the deceased.

Moral culpability and the child sexual abuse history. The offender alleged he had been sexually abused as a child. Ierace J accepted that child sexual abuse can cause lasting psychological harm, including difficulties with anger and jealousy, and referred to relevant research literature. However, his Honour found no sufficient causal connection between the alleged abuse and the commission of this offence to reduce the offender's moral culpability. The offender's refusal to accept responsibility and his long-standing substance use disorder further shaped the assessment of culpability and prospects of rehabilitation, which were described as guarded.

Aggravating factors. The disposal of the deceased's body in remote bushland was treated as an aggravating factor. The offence also occurred while the offender was on conditional liberty. The domestic nature of the relationship was a further statutory aggravating circumstance. The court noted the profound and ongoing impact of the offence on the deceased's mother and children.

Sentence construction. The starting point was 29 years' imprisonment. This was reduced by approximately seven per cent to 27 years to reflect the defence's facilitation of the administration of justice. The non-parole period was set at 19 years and 9 months, representing 73 per cent of the total sentence. Applying the totality principle, the sentence was backdated to commence 18 months after the offender's arrest, to achieve an appropriate overlap with a prior sentence for a property damage offence.

Orders Made

  • The offender was convicted of the murder of Carly McBride.
  • Total sentence of 27 years' imprisonment imposed, comprising a non-parole period of 19 years and 9 months and a balance of term of 7 years and 3 months.
  • Sentence to date from 19 November 2018, expiring 18 November 2045.
  • Eligibility for release to parole on 18 August 2038.
  • The offence was directed to be recorded on the offender's criminal history as a domestic violence offence pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • A non-publication order was made in respect of the victim impact statement of Andrew Easton, to operate for 15 years from the date of sentence.
  • The offender's legal representative was directed to advise him of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW).

Key Takeaways

  • A finding of intent to kill, rather than intent to cause grievous bodily harm, can be supported by the nature and extent of injuries combined with evidence of the offender's physical capabilities, even in a circumstantial murder case.
  • Alleged histories of child sexual abuse may be raised in mitigation of moral culpability, but courts require a sufficient causal connection between that history and the specific conduct constituting the offence before any reduction in culpability is recognised.
  • Disposing of a victim's body in remote bushland constitutes an aggravating factor in sentencing for murder in New South Wales.
  • The Supreme Court applied a seven per cent reduction to the starting point sentence to reflect the defence's facilitation of the administration of justice, consistent with the approach to this mitigating factor in analogous cases.
  • Where an offender is serving a concurrent or overlapping sentence for a separate offence, the totality principle requires that the new sentence be structured to avoid a combined outcome that is disproportionate, achieved here by backdating the commencement date.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 21, 21A, 22A, 61, Pt 4 Div 1A
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cherry v R [2017] NSWCCA 150
- Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
- Imbornone v R [2017] NSWCCA 144
- Milat v R; Klein v R [2014] NSWCCA 29
- R v Hines (No 3) [2014] NSWSC 1273
- R v Isaacs (1997) 41 NSWLR 374
- R v Johns [2003] VSC 415
- R v Morris [2017] NSWSC 637
- R v Pilley (1991) 56 A Crim R 202