Citation: R v Rumsby (No 6) [2023] NSWSC 916
Court: Supreme Court of New South Wales
Date: 7 August 2023
Judge: R A Hulme AJ
Background
The offender was convicted by a jury in Dubbo on 30 June 2023 of two serious offences committed in the small Central Tablelands town of Gulgong in the late 1990s. The first offence, committed on New Year's Eve 1997/1998, was an attempted choking of an 18-year-old woman ("LS") with intent to have sexual intercourse without consent. The second offence, committed in February 1999, was the murder of a 17-year-old girl, Michelle Bright, who was attacked for sexual purposes and killed by suffocation while walking home from a party.
Both offences remained unsolved for over two decades. A breakthrough came when, following a review by the Unsolved Homicide team, an elaborate undercover police operation was mounted in 2019 and 2020. The offender was drawn into a fictitious crime gang where undercover operatives stressed honesty and loyalty and led him to believe that confessing was the only way to resolve his problems. He eventually made detailed admissions to the undercover officers and took them to locations of interest in the Gulgong area. At trial, the offender did not dispute making the admissions but argued they were unreliable. The jury rejected that argument.
Sentencing took place in August 2023. The primary sentencing questions concerned the applicable sentencing framework for offences committed in 1998 and 1999, the objective gravity of each offence, and what weight to give the offender's personal circumstances.
Legal Issues
- Whether the sentencing patterns prevailing at the time of the offences in 1998 and 1999 (rather than more recent legislation) governed the exercise
- The objective seriousness of each offence and the applicable maximum penalties
- The extent to which the offender's personal background, including factors arising from childhood disadvantage (so-called Bugmy factors), reduced his moral culpability
- The weight to be given to the offender's age, ill-health, and reduced life expectancy in setting a proportionate sentence
- The form of the non-parole period provisions applicable to pre-2003 offending under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Decision
His Honour found both offences to be of high objective gravity. The attack on LS involved punching, choking, threats of death, physical injury, and an attempt at sexual penetration. The murder of Ms Bright involved a sexual attack on a teenager walking home alone at night, resulting in death by suffocation. The Crown and defence both conceded the murder was of high objective gravity.
Because the offences were committed in 1998 and 1999, the court was required to apply sentencing patterns current at those times. Recent legislative changes, including standard non-parole period provisions, did not apply. The version of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in force before 1 February 2003 governed the structure of the sentences.
The offender presented a limited subjective case. His Honour acknowledged Bugmy factors arising from childhood disadvantage, which reduced moral culpability to a degree, though that reduction was described as conceded only to a limited extent. The offender's age, ill-health, and reduced life expectancy were also considered, and the court took them into account in the overall assessment of the sentence rather than by separately adjusting the non-parole period from its usual proportion of the head sentence.
The court imposed consecutive sentences reflecting the separate and serious nature of each offence, structuring the non-parole period so that the total effective sentence remained proportionate to the overall criminality.
Orders Made
- For the attempted choking of LS with intent to have sexual intercourse without consent: imprisonment for 10 years with a non-parole period of 7 years and 6 months, commencing 11 August 2020
- For the murder of Michelle Bright: imprisonment for 27 years with a non-parole period of 19 years, commencing 11 August 2025
- Total effective sentence: 32 years with a non-parole period of 24 years
- Earliest parole eligibility date: 10 August 2044
- Overall sentence expiry: 10 August 2052
Key Takeaways
- Where offences were committed before recent sentencing legislation took effect, the court must have regard to sentencing patterns at the time of offending; modern statutory provisions such as standard non-parole periods do not apply retrospectively.
- Bugmy factors arising from childhood disadvantage can reduce an offender's moral culpability, but the degree of that reduction depends on the circumstances and may be limited where the objective gravity of the offending is very high.
- An offender's age, ill-health, and reduced life expectancy are legitimate considerations in sentencing, but they do not override the need to impose a sentence proportionate to the gravity of the offending.
- The pre-1 February 2003 form of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) governs the non-parole period structure for offences committed before that date, including in cases where sentence is imposed many years later.
- Sufficient evidence for conviction can rest on admissions made during an undercover operation even where the offender contends at trial that those admissions were unreliable, particularly where the offender elects not to give evidence in support of that contention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 37
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Life Sentences) Amendment Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)
- Justice Act 1902 (NSW), s 125B
Cases:
- Geraghty v R [2023] NSWCCA 47
- Hordern v R [2019] NSWCCA 210
- R v Obeid (No 12) [2016] NSWSC 1815
- Ryan v R; Coulter v R [2013] NSWCCA 175
- R v Rumsby [2023] NSWCCA 229