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Supreme Court 31 March 2023

R v Knight

[2023] NSWSC 321

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW S ENTENCING M URDER S INGLE STAB WOUND U SE OF A WEAPON T RAGIC CONSEQUENCES

Citation: R v Knight [2023] NSWSC 321
Court: Supreme Court of New South Wales
Date: 31 March 2023
Judge: Yehia J

Background

The offender, a 52-year-old Aboriginal man from Bourke, pleaded guilty to the murder of his partner of approximately 30 years. The deceased was an Aboriginal woman and mother of eight who worked at the local Aboriginal Medical Service. The couple had eight children together and, despite periods of separation and instances of domestic violence, maintained a long relationship.

In the early hours of 13 March 2021, following a night of drinking at the Bourke Bowling Club, the couple returned to the deceased's home. An argument arose about where the offender would sleep. The offender went to the kitchen, retrieved a knife, concealed it behind his back, and stabbed the deceased once in the back. Several of their children, including a 14-year-old daughter who witnessed the stabbing and a 10-year-old son who was present in the house, were home at the time.

At the time of the killing, the offender was subject to an apprehended domestic violence order (ADVO) naming the deceased as the protected person. Contravening that ADVO was taken into account on a Form 1 (meaning it was considered in the overall sentencing exercise without recording a separate conviction).

  • What is the appropriate total sentence and non-parole period for murder committed in a domestic context using a single stab wound?
  • How should aggravating statutory factors, specifically the commission of the offence in the victim's home and in the presence of a child, affect the sentence?
  • What weight should be given to the offender's dysfunctional childhood, disadvantaged background, and Aboriginal identity in assessing moral culpability and the purposes of sentencing?
  • How should considerable remorse, an early guilty plea, and prospects of rehabilitation be weighed against the need for punishment, deterrence, and denunciation?
  • Whether special circumstances existed justifying an adjustment to the standard ratio of non-parole period to total sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Yehia J assessed the objective seriousness of the offence as falling below the mid-range of murder cases. The killing involved a single stab wound and the mental element established was an intention to cause grievous bodily harm rather than an intention to kill. The court found the offence was not premeditated in any sustained sense, although the act of concealing the knife and approaching the deceased from behind was deliberate. Two statutory aggravating factors applied: the offence was committed in the deceased's home, and it was committed in the presence of a child.

On the subjective case, the court placed significant weight on the offender's profound remorse and deep sense of shame, supported by psychological evidence and consistent with his early guilty plea. Yehia J also gave weight to the offender's severely dysfunctional childhood, which included exposure to violence, neglect, and deprivation. Consistent with the High Court's approach in Bugmy v The Queen (2013), the court recognised that such a background reduces moral culpability and does not diminish in relevance simply because an offender has aged.

The court considered the offender's Aboriginal identity and the particular significance of cultural connection, community, and the effects of systemic disadvantage on his life trajectory. Rehabilitation prospects were assessed as reasonable, with the court noting the offender's genuine remorse and his motivation to maintain a relationship with his surviving children. The court found special circumstances existed, principally because of the need for an adequate period of supervised parole to support rehabilitation, and adjusted the non-parole period accordingly. The court arrived at a total sentence of 17 years and 6 months, reduced from a pre-discount term to account for the 25 per cent utilitarian discount for the early plea.

Orders Made

  • The offender was convicted of murder.
  • Total sentence of 17 years and 6 months imprisonment, incorporating a 25% discount for the early guilty plea and the Form 1 offence.
  • Non-parole period of 12 years and 6 months, commencing 13 March 2021 and expiring 12 September 2033.
  • Balance of term of 5 years, expiring 12 September 2038.
  • The offender is eligible for release to parole at the expiration of the non-parole period.
  • The court noted the application of the Crimes (High Risk Offenders) Act 2006 (NSW) s 25C(1) and directed the offender's legal representatives to explain the significance of that Act to him.

Key Takeaways

  • A single stab wound causing death, where the mental element is intention to cause grievous bodily harm rather than an intention to kill, may place a murder below the mid-range of objective seriousness, even where aggravating factors are present.
  • Statutory aggravating features under s 21A(2)(c) and ss 21A(2)(ea) and (eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), specifically commission of an offence in a victim's home and in the presence of a child, were applied as formal aggravating factors in this sentencing.
  • The principle confirmed in Bugmy v The Queen (2013) 249 CLR 571 was applied: the relevance of a grossly deprived and violent upbringing to moral culpability does not diminish with age, and courts must give it genuine weight when sentencing Aboriginal offenders whose disadvantage reflects broader systemic factors.
  • An early guilty plea entered at the earliest opportunity, accompanied by genuine and consistent remorse supported by psychological evidence, warranted a 25% utilitarian discount on sentence.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where the rehabilitation needs of an offender require a longer period of supervised parole, even in serious cases of domestic homicide.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 18(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14(1)
- Crimes (High Risk Offenders) Act 2006 (NSW) s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(c), 21A(2)(ea), 21A(2)(eb), 21A(5AA), 32(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Neal v The Queen (1982) 2 ALR 609; [1982] HCA 55
- Attorney General's Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115
- Chandler v R [2023] NSWCCA 59
- Lloyd v R [2022] NSWCCA 18
- Hoskins v R [2021] NSWCCA 169
- McKinnon v R [2020] NSWCCA 106
- Goodburn v R [2020] NSWCCA 77
- Dungay v R [2020] NSWCCA 209
- Kelly v R [2016] NSWCCA 246
- Park v R [2019] NSWCCA 105
- R v Ahmed (No 2) [2023] NSWSC 105
- R v AN; R v LM; R v WD [2022] NSWSC 1272
- R v Archer [2021] NSWSC