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Supreme Court 28 July 2021

R v Reay (No 2)

[2021] NSWSC 901

Homicide
SENTENCING MURDER IN GAOL STRANGULATION OF CELL MATE INTENT TO KILL OBJECTIVE SERIOUSNESS VERY GRAVE

Citation: R v Reay (No 2) [2021] NSWSC 901
Court: Supreme Court of New South Wales
Date: 28 July 2021
Judge: R A Hulme J

Background

The offender, a 47-year-old man with an extensive and violent criminal history, was sentenced for the murder of his cell mate at the Mid North Coast Correctional Centre on the night of 10 June 2019. Both men had been transferred to the same facility on the same day and were placed together in Cell 234 just days before the offence. The victim had been described by prison health staff and correctional officers as behaving in a completely unremarkable way in the days leading up to his death.

The offender strangled the victim during an overnight lock-in period. When a fellow inmate came by the following morning, the offender told him his "celly is dead." A ligature mark was discovered on the victim's neck when the body was moved during what had initially been treated as a routine death-in-custody investigation.

At trial, the offender claimed the victim had attacked him first and that he acted in self-defence, albeit excessively. Hulme J rejected that account as completely implausible at the judge-alone trial and found the offender guilty of murder: R v Reay [2021] NSWSC 311. The sentencing judgment addressed the appropriate penalty.

  • What was the objective seriousness of the murder, and what intent could be established for sentencing purposes?
  • How should the offender's background, including a severe antisocial personality disorder and extensive violent criminal history, affect the sentence?
  • How should the principle of totality apply when accumulating the murder sentence on existing custody?
  • Whether special circumstances existed to justify reducing the non-parole component of the sentence below the standard ratio.
  • Whether and how to exercise the discretion under s 56(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to backdate the sentence.

Decision

Hulme J characterised the objective seriousness of the offence as very grave. For sentencing purposes, his Honour was satisfied beyond reasonable doubt that the offender acted with an intent to kill, not merely to cause grievous bodily harm. The court reasoned that manual ligature strangulation is a sustained act requiring a deliberate and continued choice to persist until the victim is lifeless, and that no other conclusion was available on the facts.

The offender's personal history was deeply troubling. He had a deprived and violent upbringing, a severe antisocial personality disorder, and a long record of unprovoked violence in both New South Wales and Queensland. The court had already been satisfied at trial, beyond reasonable doubt, that a tendency to carry out acts of unprovoked violence had been proved. While the difficult background offered some mitigation, Hulme J found it carried limited weight given the gravity and nature of the offending.

The offender received minimal credit for what was framed as acceptance of responsibility, because he continued to withhold an honest account of events. His counsel argued for some allowance on this basis, but the court held that advancing an incredible self-defence claim and then declining to explain what actually occurred substantially diminished the weight attributable to any expression of remorse or responsibility.

On totality, the sentence was accumulated on approximately two years of prior custody from April 2018. The court noted that the combined minimum custodial component was slightly greater than the standard proportion, but declined to make any adjustment. No special circumstances were found to justify reducing the non-parole period below the statutory ratio.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to a total term of 30 years imprisonment, comprising a non-parole period of 22 years and 6 months with a balance of term of 7 years and 6 months.
  • Sentence backdated to commence on 1 June 2020.
  • Eligible for release on parole on 30 November 2042.
  • The offender's solicitor was required to advise him of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), as required by s 25C of that Act.

Key Takeaways

  • A finding of intent to kill, rather than the lesser intent to cause grievous bodily harm, was open for sentencing purposes even where only the broader finding was necessary for conviction: the court applied a higher level of precision appropriate to the sentencing context.
  • Manual ligature strangulation was treated as particularly grave because it requires sustained deliberate effort and the perpetrator retains the choice to desist at any moment, making the continued act an unambiguous exercise of lethal will.
  • Severe antisocial personality disorder and a deprived background provided limited mitigation where the offending was extreme, unprovoked, and formed part of a pattern of serious violence established by tendency evidence at trial.
  • Under Veen v The Queen (No 2) (1988) 164 CLR 465, an offender's prior violent history may inform the assessment of dangerousness and the need to protect the community, even though it cannot be used to punish the offender twice for past conduct.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offender, and the court fulfilled its statutory obligation under s 25C by directing that the offender be advised of the Act's existence and application.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 56
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- R v Reay [2021] NSWSC 311 (the primary trial judgment)
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Lawrence [2005] NSWCCA 91
- R v Dong [2021] NSWCCA 82
- State of New South Wales v Reay [2014] NSWSC 1813