Citation: R v Douglass (No 2) [2023] NSWSC 465
Court: Supreme Court of New South Wales
Date: 12 May 2023
Judge(s): Ierace J
Background
The offender, a woman aged 26 at the time of the offence, was convicted of the murder of a 69-year-old man at Lithgow in August 2016. She and her partner, AS, entered the deceased's home armed with knives, intending to steal cash they believed he kept there. Both stabbed the victim, who died from multiple stab and incised wounds. His body was not discovered until approximately a month later, during which time the offender returned to the residence at least once to search for more money.
This was the third trial of the offender on the murder count. A jury convicted her in 2018, but the Court of Criminal Appeal quashed that conviction in 2020. A second jury trial in 2022 ended without a verdict. The third trial proceeded before Ierace J alone, who returned a guilty verdict on 26 September 2022.
The sentence hearing took place on 2 February 2023. AS, the co-offender, had already been sentenced in 2018 after pleading guilty, receiving an indicative murder sentence with a starting point of 30 years, reduced for his early plea and assistance to the prosecution.
Legal Issues
- What sentence was appropriate for murder, having regard to the standard non-parole period of 20 years applicable in these circumstances?
- To what extent did the offender's childhood exposure to physical violence and drug abuse, and her resulting complex PTSD, reduce her moral culpability under the Bugmy v The Queen principle?
- Whether the offender demonstrated genuine remorse warranting mitigation of sentence.
- Whether the sentence was consistent with parity principles, given the sentence already imposed on co-offender AS.
Decision
Ierace J found that the offence was serious. The offender and AS had armed themselves, planned the entry, and both stabbed the elderly and unarmed victim in his own home. The offender stabbed the deceased in the eye and the back, wounds that penetrated his lung, and the court found she intended at the time to cause at least really serious bodily injury. Her return to the scene to search for money in the weeks following the killing was treated as an aggravating feature.
On the Bugmy principle (drawn from the 2013 High Court decision confirming that the effects of profound childhood disadvantage do not diminish over time and must always be weighed in sentencing), the court accepted that the offender had been exposed to significant childhood violence and drug abuse and that she suffered from complex PTSD. However, Ierace J found that this background contributed to the offending only to a limited extent, and it did not substantially reduce her culpability for a deliberate, planned killing.
The court found no mitigating remorse. Although the offender had at some point expressed sympathy for the deceased's family, her conduct and the evidence overall did not satisfy the court that she was genuinely remorseful. By contrast, the court found she had good prospects of rehabilitation, which was treated as a meaningful mitigating factor.
On parity with AS, Ierace J identified three significant distinctions: the offender was not the originator of the criminal enterprise; she had no prior criminal record (though she had used prohibited drugs); and she had positive prospects of rehabilitation, which did not apply to AS. The court concluded that the sentence imposed was not disparate with that of AS when those differences were properly weighed.
Orders Made
- The offender was sentenced to a total term of imprisonment of 26 years, comprising a non-parole period of 19 years and 6 months and a balance of term of 6 years and 6 months.
- The sentence dates from 5 October 2016 and expires on 4 October 2042.
- The offender becomes eligible for parole on 4 April 2036.
- The offender was informed of the operation of s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), which permits the State to apply for continuing detention or extended supervision as her release date approaches.
Key Takeaways
- Under the Bugmy v The Queen principle, courts must always weigh childhood disadvantage and its lasting psychological effects in sentencing, but that principle does not operate to substantially reduce culpability where a killing was deliberate and planned.
- Complex PTSD arising from childhood trauma can be accepted as a contributing factor to offending without it being treated as a major mitigating circumstance, particularly where the offence involved significant premeditation and violence.
- Absence of genuine remorse is a relevant factor in sentencing for murder; expressions of sympathy that fall short of authentic acknowledgment of wrongdoing do not attract the mitigating weight associated with remorse.
- Parity between co-offenders requires attention to individual differences: the absence of a prior record, a lesser role in originating the criminal enterprise, and better prospects of rehabilitation can justify a materially different sentence without creating impermissible disparity.
- A sentence equal in length to the sentence imposed at the first trial (26 years) was reached on different underlying facts and circumstances, reflecting that sentencing is an individually calibrated exercise rather than a mechanical replication of prior outcomes.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 19A, 112, 154F
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 33, 61
- Criminal Procedure Act 1986 (NSW), ss 132, 166
- Firearms Act 1966 (NSW), ss 51H, 65
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Douglass v R [2020] NSWCCA 284
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA
- DS v R; DM v R [2022] NSWCCA 156
- McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94
- R v Bedford (1986) 5 NSWLR 711
- R v Douglass (No 4) [2019] NSWSC 366
- R v Douglass (No 1) [2022] NSWSC 1287
- R v Gilmore (1979) 1 A Crim R 416
- R v Wilkinson (No 5) [2009] NSWSC 432
- Tarrant v R [2007] NSWCCA 124
- Tepania v R [2018] NSWCCA 247