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Supreme Court 28 July 2022

R v NB (Sentence)

[2022] NSWSC 1013

Homicide

Citation: R v NB (Sentence) [2022] NSWSC 1013
Court: Supreme Court of New South Wales
Date: 28 July 2022
Judge: Cavanagh J

Background

The offender was a foster carer who had been looking after a 20-month-old child since November 2014, when the Department of Family and Community Services placed the child with her family. The child died in the early hours of 23 March 2015 from a perforated stomach sustained during the night at the offender's home. He had been observed by multiple people the previous evening and showed no signs of injury or distress at that time.

Following a 17-day judge-alone trial in the Supreme Court at Dubbo, Cavanagh J convicted the offender of murder on 22 February 2022. The court found that the child was violently assaulted by the offender during the night of 22/23 March 2015, and that the fatal stomach perforation, a femur fracture, and other bruising were all inflicted during that period. Medical evidence indicated that earlier intervention would likely have saved the child's life.

This judgment deals with sentence only. The conviction findings are contained in a separate judgment: R v NB [2022] NSWSC 151.

  • What is the appropriate total sentence and non-parole period for the murder of a young child by a person with no criminal history and prior good character?
  • Where does this offending sit on the spectrum of objective seriousness for child murder?
  • What weight, if any, should be given to the offender's prior good character, low risk of reoffending, and other mitigating factors?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence?
  • Whether a reduction for facilitating the administration of justice was warranted?

Decision

Objective seriousness. Cavanagh J assessed the offending as falling above the mid-range of seriousness for child murder, but below the worst-case category. The Crown accepted the absence of evidence of an intention to kill and any planning or premeditation. The court accepted that the assault was spontaneous, arising from a loss of control. However, the constellation of injuries, including the fractured femur and the perforated stomach, indicated an ongoing assault that would have caused the child extreme pain for several hours before his death. The child's profound vulnerability, his total dependence on the offender for his safety, and the failure to seek timely medical intervention were all significant aggravating factors.

Subjective factors and mitigation. The court accepted that the offender had previously presented as a caring person, had no prior criminal history, and had genuinely positive character. The offender was assessed as unlikely to reoffend. These matters were afforded weight in mitigation, though the court noted that good character carries reduced weight where the offending involved a betrayal of trust toward a wholly dependent child. A modest reduction was applied for facilitating the administration of justice, consistent with the principles in cases such as BP v R and Hili v The Queen.

Comparison with comparable cases. Cavanagh J reviewed several comparable sentencing decisions, including R v Khazma, R v Lock and R v Whiteley. The court acknowledged that no two cases are identical and accepted the offender's submission that none of the comparable cases involved a person who had previously appeared caring, had no criminal history, and acted spontaneously rather than with sustained or premeditated violence.

Special circumstances. The court found that special circumstances existed, justified primarily by the offender's need for an extended period of supervised parole to assist with rehabilitation and reintegration following a lengthy custodial term. This finding permitted a non-parole period proportionally shorter than the statutory default.

Orders Made

  • The offender was sentenced to a total term of 26 years and 6 months imprisonment, commencing 8 May 2019 and expiring 7 November 2045.
  • A non-parole period of 18 years was fixed, with the offender first eligible for release on 7 May 2037.
  • The offender was warned of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), as required by that Act given the conviction for a serious offence.

Key Takeaways

  • Cavanagh J placed the offending above the mid-range of objective seriousness for child murder, with the child's extreme vulnerability, the multiplicity of injuries, his prolonged suffering, and the failure to seek medical care all weighing heavily in that assessment.
  • A prior history of good character and an absence of criminal antecedents can still be given mitigating weight in a child murder sentencing, though that weight is tempered where the offending constituted a fundamental betrayal of the trust placed in the offender as a carer.
  • Where a murder is found to have been spontaneous and to have arisen from a loss of control, rather than from premeditation or an intention to kill, those circumstances may place the case below the most serious category, even where the resulting harm was severe.
  • Special circumstances were established, supporting a departure from the standard non-parole period ratio, primarily on the basis of the offender's need for extended supervised parole following a long custodial sentence.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a court sentencing for a "serious offence" is required to warn the offender of the existence of that Act and its potential application upon approaching release.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- R v NB [2022] NSWSC 151 (conviction judgment)
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Ali v R [2010] NSWCCA 35
- Alseedi v R [2009] NSWCCA 185
- R v Khazma [2019] NSWSC 416
- R v Lock, Thomas [2017] NSWSC 715
- R v Whiteley [2021] NSWSC 153
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Ryan v The Queen (2000) 206 CLR 267; [2001] HCA 21
- Droudis v The Queen (2020) 103 NSWLR 806; [2020] NSWCCA 322
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194