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Supreme Court 3 November 2023

R v Ratke

[2023] NSWSC 1310

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER OF WIFE DOMESTIC VIOLENCE PLEA OF GUILTY

Citation: R v Ratke [2023] NSWSC 1310
Court: Supreme Court of New South Wales
Date: 3 November 2023
Judge: Weinstein J

Background

The offender, a 73-year-old man, pleaded guilty to the murder of his wife of more than 50 years. The killing occurred on approximately 8 or 9 December 2020 at the couple's home in the Blue Mountains, when the offender stabbed his wife multiple times with a folding knife as she lay in bed. A post-mortem examination recorded no fewer than 17 sharp force injuries to the chest, with at least six wound tracks penetrating the thoracic cavity.

In the days following the killing, the offender attempted to take his own life through a combination of alcohol and medication, self-inflicted cutting, and a planned carbon monoxide overdose. He was discovered unresponsive at the home on 15 December 2020, when police and ambulance officers also found the deceased. The offender cooperated fully with police and participated voluntarily in a recorded interview, expressing remorse and describing himself as perplexed by his own actions.

The couple had experienced financial strain, and the offender's messages to his cousin in the immediate aftermath of the offence pointed to financial pressures as a trigger. They had previously suffered the death of their only daughter from cancer more than two decades earlier. The offender pleaded guilty in the Local Court at Penrith on 17 February 2023.

  • What sentence was appropriate for the murder, taking into account the standard non-parole period of 20 years and the maximum penalty of life imprisonment?
  • What weight should be given to a mental health impairment and its effect on the offender's moral culpability?
  • What discount applied for the early plea of guilty?
  • How should the offender's advanced age, subjective circumstances, and post-offence conduct affect the sentencing exercise?

Decision

Weinstein J approached sentencing by applying the "instinctive synthesis" method confirmed in Markarian v The Queen (2005) 228 CLR 357, weighing all relevant facts, the statutory guidepost of the 20-year standard non-parole period, the maximum penalty of life imprisonment, and the factors set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. The objective seriousness of the offence was considered in light of the deliberate and sustained nature of the attack, the domestic violence context, and the vulnerability of the victim.

The court took into account the offender's mental health impairment, finding that it reduced his moral culpability to a degree, though the precise nature of that reduction is not detailed in the available text. The offender's advanced age, his cooperative conduct with police, his expressions of remorse, and his attempts at self-harm after the offence were also treated as relevant subjective considerations in mitigation.

A discount of 25 percent was applied to the head sentence to reflect the utilitarian value of the early guilty plea. Without that discount, the head sentence would have been 23 years. The court determined that no sentence other than full-time imprisonment was appropriate, resulting in a head sentence of 17 years and 3 months.

Orders Made

  • The offender was convicted of murder contrary to s 18(1)(a) of the Crimes Act 1900.
  • Sentenced to a non-parole period of 11 years, commencing 16 December 2020.
  • Head sentence of 17 years and 3 months, expiring 15 March 2038.
  • Eligible for release to parole on 15 December 2031.
  • The sentence was backdated to 16 December 2020 (the date of arrest and custody).
  • The offender and his legal representatives were notified of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application.

Key Takeaways

  • A guilty plea entered at an early stage attracted a 25 percent discount to the head sentence, reducing it from a notional 23 years to 17 years and 3 months, consistent with the utilitarian value principle applied in sentencing for serious offences.
  • Mental health impairment was treated as a factor bearing on moral culpability in a murder sentencing, capable of mitigating the weight attributable to objective seriousness, though it did not displace the need for full-time imprisonment.
  • The 20-year standard non-parole period for murder operated as a legislative guidepost rather than a fixed starting point, with the sentencing court conducting a holistic assessment of all relevant circumstances before arriving at the appropriate sentence.
  • Advanced age, post-offence remorse, cooperation with police, and a history free of prior violence were each treated as relevant subjective matters in mitigation, alongside the serious domestic violence context of the offending.
  • Where an offender has been convicted of murder, the Crimes (High Risk Offenders) Act 2006 (NSW) may be engaged, and the sentencing court is required under s 25C to ensure the offender is advised of the existence and potential application of that Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Gulyas v Western Australia [2007] WASCA 263
- Liu v R [2023] NSWCCA 30
- Luque v R [2017] NSWCCA 226
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247