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Supreme Court 17 March 2023

R v Dempsey

[2023] NSWSC 205

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER VICTIM LEFT IN BATHTUB WHETHER DEATH BY DROWNING VICTIM IMPACT STATEMENTS

Citation: R v Dempsey [2023] NSWSC 205
Court: Supreme Court of New South Wales
Date: 17 March 2023
Judge: Hamill J

Background

The offender, a former de facto partner, pleaded guilty to the murder of the mother of his two young children. The killing occurred on 8 March 2012 at the victim's home in Lithgow, where she was living alone with the children after the couple had separated. The offender had a history of possessive and verbally abusive behaviour, though he had not been physically violent before the day of the murder.

The victim had been exploring relocating with the children to Dubbo, where her father lived. The offender's response to that prospect was inconsistent. In the months before her death, their relationship had deteriorated markedly, and the victim had begun recording their arguments.

The sentencing proceeded approximately eleven years after the killing. Victim impact statements were read to the court by members of the victim's family, including two sisters who had each, at different times, taken on the care of the victim's orphaned children.

  • What was the appropriate objective assessment of the seriousness of the murder, including the role of the method of killing and use of a weapon?
  • Whether the cause of death (a blow to the head, with possible subsequent drowning) affected the assessment of objective criminality.
  • Whether the offender's dysfunctional childhood and its psychological effects reduced his moral culpability, and if so, to what extent.
  • How victim impact statements, particularly those demonstrating harm to the extended family and orphaned children, were to be weighed in sentencing.
  • Whether the offender's love for his children and fear of losing them to relocation could operate as mitigating factors.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • The significance of the offence occurring in the victim's own home, and the increased need for general deterrence in the context of domestic homicide.

Decision

Objective seriousness and method of killing

Hamill J characterised the killing as a brutal and sustained attack carried out in the victim's own home. The offender used at least one blunt instrument, inflicting extensive injuries across the victim's body before leaving her naked in a filled bathtub. Although the precise cause of death could not be established beyond reasonable doubt (the blow to the head either directly caused death or contributed to it by leaving the victim in water), his Honour found this uncertainty did not diminish the objective gravity of the offending. The commission of the offence in the victim's home was treated as a statutory aggravating circumstance, and the use of a weapon as a further aggravating factor. The offence was placed in the mid-range of objective seriousness.

Deterrence and the domestic context

His Honour emphasised the particular importance of general deterrence in cases of domestic homicide. Referring to authority including Munda v Western Australia (2013) 249 CLR 600, the court noted that deterrence carries increased weight where an intimate partner is killed in circumstances connected to the victim's decision to leave the relationship or relocate with children. The victim was entitled to move to another area with her children. The offender's claimed love for his children and fear of losing contact with them were expressly rejected as mitigating factors; his Honour held those circumstances, if anything, increased the need for deterrence.

Moral culpability and background

Psychological evidence concerning the offender's severely dysfunctional childhood was accepted. His Honour found this history reduced the offender's moral culpability to a degree, consistent with the well-established principle that an abusive upbringing can bear on subjective circumstances in sentencing. However, the court was clear that this consideration operated on subjective culpability only and did not reduce the objective gravity of the offence.

Victim impact statements

The court acknowledged the profound harm demonstrated in the victim impact statements, including the burden assumed by the victim's sisters in caring for her orphaned children with little institutional support. His Honour took that harm into account as an aspect of harm done to the community, in accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3). The offender's guilty plea was also noted as having spared the family, and particularly the children, the trauma of a contested trial.

Special circumstances and sentence structure

Hamill J found special circumstances existed, warranting a modest reduction to the non-parole period to allow adequate time for supervised reintegration. The adjustment was deliberately small, his Honour noting that the non-parole period must not fall below a level that reflects the objective gravity of the crime.

Orders Made

  • The offender was sentenced to a total term of 19 years and 9 months.
  • Non-parole period of 14 years and 6 months, commencing 20 February 2020 and expiring 19 August 2034.
  • Balance of term of 5 years and 3 months, commencing 20 August 2034 and expiring 19 November 2039.
  • The offender was advised, pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), of the existence and application of that Act to him and to this offence.

Key Takeaways

  • A victim's decision to leave a relationship or relocate with children is not a circumstance that diminishes the offender's culpability; Hamill J confirmed it can, in fact, heighten the need for general deterrence in domestic homicide sentencing.
  • Uncertainty about the precise cause of death (direct blow versus subsequent drowning) does not necessarily reduce the objective gravity of a killing where the fatal assault itself is established and was savage in character.
  • Evidence of a severely dysfunctional childhood, accepted through psychological reporting, can reduce an offender's moral culpability as a subjective sentencing consideration, but carries no weight in reducing the objective seriousness of the offence.
  • Under s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the extended harm demonstrated by victim impact statements, including the burden of care imposed on surviving family members, is a legitimate consideration in determining the appropriate sentence.
  • Where special circumstances are found in a murder sentence, the resulting adjustment to the non-parole period may be modest, constrained by the requirement that the non-parole period continue to reflect the objective gravity of the offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(eb), 21A(2)(k), 21A(3)(i), 30E(3); Pt 3 Div 2; Table to Pt 4 Div 1A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Hamid [2006] NSWCCA; (2006) 164 A Crim R 179
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204
- DH v R [2022] NSWCCA 200
- Lloyd v R [2022] NSWCCA 18
- Devaney v R [2012] NSWCCA 285
- Lechmana v R [2019] NSWCCA 112; R v Lechmana [2010] NSWSC 849
- R v Ahmed (No 2) [2023] NSWSC 105
- R v Halloun [2014] NSWSC 1705
- R v Haydar (No 4) [2017] NSWSC 615
- R v Hines (No 3) [2014] NSWSC 1273
- R v Johnson [2015] NSWSC 31
- R v Latu (No 3) [2019] NSWSC 951
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369