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Supreme Court 26 August 2022

R v Weaver (No 13)

[2022] NSWSC 1140

Assault & violenceHomicide
CRIMINAL LAW SENTENCING MURDER WHERE JURY RETURNED VERDICT OF GUILTY RELEVANT FACTORS ON SENTENCE

Citation: R v Weaver (No 13) [2022] NSWSC 1140
Court: Supreme Court of New South Wales
Date: 26 August 2022
Judge: Campbell J

Background

The offender was tried for the murder of Larry White, which occurred on 20 December 2019 at a North Gosford home unit. At the commencement of the trial, the offender pleaded not guilty to murder but guilty to the alternative count of manslaughter. The Crown did not accept the manslaughter plea in full discharge of the indictment, and the offender stood trial for murder. On 17 May 2022, the jury returned a verdict of guilty of murder.

The background involved the offender, his partner Ms Howlett, and the deceased, all of whom were heroin addicts. Following the offender's release to parole in November 2019, both he and Ms Howlett took up residence in the deceased's home unit. The offender harboured an obsessive and jealous belief that Ms Howlett had been sexually unfaithful to him with the deceased, a belief Campbell J found was not well-founded on the evidence.

The fatal events unfolded on the morning of 20 December 2019, which was Ms Howlett's birthday. The offender returned home after staying out all night, an argument erupted between the parties, and the deceased was fatally stabbed. The sentencing proceedings required the court to make its own findings of fact about the circumstances of the killing for the purpose of assessing the offender's moral culpability.

  • Whether the deceased had armed himself with a knife before he was fatally stabbed by the offender
  • Whether the offender's conduct was entirely spontaneous or reflected longer-term contemplation of a violent attack on the deceased
  • Whether the offender's post-offending conduct was relevant to the sentence
  • What weight should be given to the offender's personal circumstances, including his drug dependence and prior criminal history, in mitigation
  • Whether special circumstances existed to vary the statutory ratio between the non-parole period and the additional term

Decision

Campbell J approached the sentencing task by making independent findings of fact from the trial evidence, consistent with the jury's verdict of guilty of murder. His Honour emphasised that a sentencing judge is not to second-guess the jury but must assess the offender's moral culpability on the basis that all adverse facts must be proved by the prosecution beyond reasonable doubt, while mitigating facts need only be proved by the offender on the balance of probabilities.

On the question of premeditation, Campbell J was not persuaded beyond reasonable doubt that there was longstanding planning or premeditation. However, the court found that the offender was "fully primed to do violence" to the deceased, having harboured an angry and jealous ill-will toward him since early November 2019. The offender already had, in his own mind, the motivation and justification for violence should the occasion arise. Whether the offender's jealous belief was well-founded was held to be irrelevant to the objective seriousness of the offence or the offender's moral culpability.

The court addressed the offender's personal circumstances, including his substance abuse disorder, his history of drug dependence, and his prior criminal record. These were weighed alongside the objective gravity of the offending. The court found this was not an appropriate case for a finding of special circumstances to vary the statutory ratio between the non-parole period and the additional term, as the parole period available would be adequate to assist with reintegration after a long sentence.

Campbell J also noted that murder is a serious violent offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), and was required to inform the offender that he may be subject to a continuing detention order or extended supervision order at the expiration of his sentence if he is found to pose an unacceptable risk of further serious offending.

Orders Made

  • Convicted of murder; sentenced to imprisonment of 24 years and 8 months, with a non-parole period of 18 years and 6 months commencing 9 March 2020 and expiring 8 September 2038, and an additional term of 6 years and 2 months commencing 9 September 2038 and expiring 8 November 2044
  • Convicted of resisting arrest on guilty plea; sentenced to a fixed term of 6 months imprisonment commencing 9 March 2020 and expiring 8 September 2020
  • Convicted of carrying a cutting weapon on guilty plea; proceedings disposed of without further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Key Takeaways

  • A sentencing judge's role is distinct from the jury's: where the jury determines legal responsibility, the sentencing court assesses moral culpability and makes its own factual findings from the evidence, provided those findings remain consistent with the verdict.
  • Facts adverse to an offender at sentencing must be proved by the prosecution beyond reasonable doubt; facts relied upon in mitigation need only be established by the offender on the balance of probabilities, following the approach confirmed in R v Olbrich (1999) 199 CLR 270.
  • Under the principles applied here, a jealous belief about a victim's conduct, even if genuinely held, carried no weight in reducing the objective seriousness of a murder or the offender's moral culpability.
  • Absent proof of longstanding premeditation beyond reasonable doubt, the court found the offender's conduct was not the product of prior planning, but this did not diminish the gravity of offending where the offender was found to have been primed and motivated for violence.
  • Murder is a serious violent offence for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), and sentencing courts are required to inform offenders of the potential for future continuing detention or supervision applications at the expiration of their sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 58, 547D
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21, 21A, 22A, 54A, 54B, 61
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Beldon v R [2012] NSWCCA 194
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Perkins v R [2018] NSWCCA 62
- R v Chatimba (No 2) [2021] NSWSC 863
- R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
- R v Isaacs (1997) 41 NSWLR 374
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Pearce [2008] NSWSC 1434
- R v RJB [2019] NSWSC 719
- Silvano v The Queen [2008] NSWCCA 118; 184 A Crim R 593