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Supreme Court 21 February 2022

R v Darcy (No. 9)

[2022] NSWSC 135

HomicideFraud & dishonestyDomestic & family violence
SENTENCE MURDER CONVICTION AFTER TRIAL OFFENCE COMMITTED IN THE HOME SIGNIFICANT DEGREE OF PLANNING DOMESTIC VIOLENCE OFFENCE

Citation: R v Darcy (No. 9) [2022] NSWSC 135
Court: Supreme Court of New South Wales
Date: 21 February 2022
Judge(s): Lonergan J

Background

The offender was convicted by jury of the murder of her partner, Mathew John Dunbar, at his rural farming property near Walcha, New South Wales, on 2 August 2017. The deceased was 42 years old at the time of his death. The offender had initiated the relationship in late 2014 and had no independent income or assets throughout it, relying financially on the deceased.

The offender had persuaded the deceased to change his will in 2015, making her the sole beneficiary of his estate, including the farming property valued at approximately $3.4 million at the time of the murder. The offender killed the deceased by sedating him with drugs and then placing an exit bag apparatus connected to a helium gas cylinder over his head, staging the scene to appear as a suicide.

The offender's internet and phone search records revealed months of research into methods of killing, including drugs, poisons, and suicide methods, as well as deliberate steps to manufacture a false narrative of the deceased's suicidality in the minds of friends and treating clinicians. She denied any involvement in the death, and maintained that denial through the trial and into sentencing.

  • Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), on the basis that the level of culpability was so extreme that only a life sentence could satisfy the community's interest in retribution, punishment, community protection, and deterrence.
  • What the appropriate head sentence and non-parole period were, having regard to the objective seriousness of the offence, the offender's personal circumstances, prospects of rehabilitation, and comparable sentences.
  • Whether the offender's continued denial of responsibility and lack of remorse affected the sentencing exercise.
  • What weight should be given to the domestic violence context of the offence.

Decision

Lonergan J found the offence to be in the high range of objective seriousness. The planning was extensive and persistent, spanning months of online research into drugs, poisons, injection techniques, and suicide methods. The offender actively constructed a false narrative of the deceased's mental ill-health, manipulated him emotionally, and used his voluntary hospitalisation as an opportunity to further research killing methods and to lay a false evidentiary trail. The financial motive, the betrayal of trust within an intimate relationship, and the staging of the scene to disguise the murder as suicide were all significant aggravating factors.

The Crown pressed for a life sentence. Lonergan J declined to impose one, finding that, while the offending was extremely serious, the test under s 61(1) was not met. The judge considered that the community interests of protection and specific deterrence could be adequately addressed by a substantial fixed-term sentence, having regard to the offender's age at the earliest possible release date. A life sentence is reserved for those cases where no other sentence can satisfy the statutory purposes.

The offender showed no remorse and continued to deny responsibility after the jury's verdict. Her prospects of rehabilitation were assessed as unfavourable on that basis. The court had regard to the offender's mental health, noting some symptoms of anxiety and panic in custody, but found the custodial environment would not be more stressful for her than for an average offender in the same circumstances. The court also acknowledged the victim impact statement from the deceased's mother and extended condolences to the deceased's family and community.

The offending was also characterised as a domestic violence offence, and the court noted the High Court's observations in Munda v Western Australia (2013) 249 CLR 600 regarding the need for courts to address the gravity of such offences firmly.

Orders Made

  • The offender was sentenced to 40 years imprisonment for the murder of Mathew John Dunbar.
  • A non-parole period of 30 years was set, commencing 18 November 2017 and ending 17 November 2047.
  • The balance of term is 10 years, ending 17 November 2057.
  • The offender is eligible for release on parole on 17 November 2047.
  • The offender was notified of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) at the expiry of her sentence.

Key Takeaways

  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence is warranted only where the culpability is so extreme that no lesser sentence can satisfy the community's interest in retribution, punishment, community protection, and deterrence. The Supreme Court found that threshold was not met here, even in the face of extensive premeditation and a financial motive.
  • Significant and persistent planning, including months of online research into killing methods, deliberate fabrication of a false narrative of the victim's suicidality, and staging the crime scene, placed the offence in the high range of objective seriousness without necessarily attracting a life sentence.
  • Continued denial of guilt and absence of remorse after conviction are relevant to the assessment of rehabilitation prospects, and the court treated both as unfavourable factors in this case.
  • A domestic violence context is a recognised aggravating consideration at sentencing, and courts are expected to reflect the gravity of such offences in the sentence imposed.
  • Where an offender's age at the earliest release date means the community's protective interest can be addressed by a fixed-term sentence, that factor may weigh against imposing life imprisonment, even for very serious offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1) (definition of murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 54A, 61 (sentencing purposes; standard non-parole period; life sentence)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- CC v R; R v CC [2021] NSWCCA 71
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Dawes [2004] NSWCCA 363
- R v Morabito (1992) 62 A Crim R 82
- R v Sean Lee King [2013] NSWSC 801
- Rogerson v R; McNamara v R [2021] NSWCCA 160