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Supreme Court 30 July 2024

R v Aylward

[2024] NSWSC 923

Assault & violenceHomicide
SENTENCE MURDER OFFENCE ONE OF CONSIDERABLE VIOLENCE OFFENDER AGED 18 YEARS EARLY PLEA OF GUILTY EVIDENCE OF GENUINE REMORSE

Citation: R v Aylward [2024] NSWSC 923
Court: Supreme Court of New South Wales
Date: 30 July 2024
Judge(s): Wilson J

Background

The offender, aged 18 at the time of the offence, pleaded guilty to the murder of a 17-year-old victim who was stabbed to death while asleep in his family home in the early hours of 25 June 2022. The offender entered the victim's home armed with a large knife and stabbed him 12 times to the head and torso. The attack followed a series of messages in which the offender had been told by a family member that the victim had hurt her, a claim the Crown neither accepted nor needed to resolve.

The offender had consumed alcohol and illicit drugs on the night of the offence. He had made explicit threats to kill the victim in messages sent shortly before the attack, including asking for the victim's address and street number from a mutual friend.

The offender entered an early plea of guilty in the Local Court, which was maintained on arraignment before the Supreme Court. He was committed for sentence, and the matter came before Wilson J on 30 July 2024.

  • What sentence should be imposed for murder, taking into account the standard non-parole period of 25 years, the objective gravity of the offence, and all relevant mitigating factors?
  • What weight should be given to the offender's age (18 years) at the time of the offence?
  • How should the offender's background of serious childhood physical and sexual abuse, domestic violence exposure, and deprivation affect the sentence?
  • What discount applied to the sentence by reason of the early guilty plea?
  • Whether parity with other offenders connected to the matter was a relevant sentencing consideration.

Decision

Wilson J approached sentencing by explicitly acknowledging the competing demands of punishment, accountability, and rehabilitation, while giving effect to the statutory and common law requirements to treat youth and a dysfunctional background as mitigating factors. Her Honour noted the fundamental tension: the extreme gravity of the offence pointed toward a heavy sentence, while the offender's age, background, remorse, and rehabilitative prospects required that sentence to be reduced.

The offender's childhood was found to have been marked by serious physical and sexual abuse, exposure to domestic violence, and pervasive drug use in the home. Consistent with the principles in Bugmy v The Queen, these circumstances were treated as relevant to the assessment of moral culpability, diminishing (though not excusing) the offender's responsibility for the crime.

Wilson J accepted evidence of genuine remorse and found the offender had good future prospects. The early guilty plea attracted a 25% discount on the sentence that would otherwise have been imposed. Her Honour reviewed comparable cases from the Public Defender's Tables involving offenders aged 18 to 20, but concluded that none were truly comparable, though they provided general guidance on range.

On the question of parity, Wilson J noted that the offender's father and a friend faced separate proceedings (as accessories) but had not yet been sentenced, and that their offences were sufficiently removed from the offender's crime that parity considerations were not relevant.

Orders Made

  • The offender was sentenced to 18 years imprisonment for the murder of the victim on 25 June 2022, with a non-parole period of 12 years.
  • The sentence commenced on 26 June 2022.
  • The non-parole period expires on 25 June 2034; the total term expires on 25 June 2040.
  • A 25% discount was applied to the sentence by reason of the early guilty plea.
  • The offender was warned that the Crimes (High Risk Offenders) Act 2007 (NSW) may apply to him.
  • A copy of the psychologist's report (Alison Cullen, 14 June 2024) is to accompany the warrant of commitment for provision to NSW Corrective Services and Justice Health.

Key Takeaways

  • Murder committed by an 18-year-old offender, involving premeditated entry into a victim's home and 12 stab wounds to a sleeping victim, was treated as an offence of considerable gravity warranting a substantial sentence notwithstanding significant mitigating factors.
  • Under the principles confirmed in Bugmy v The Queen, a background of serious childhood abuse and deprivation remains a persistent mitigating factor that reduces moral culpability, even where the offence itself is very serious.
  • An early plea of guilty entered in the Local Court entitled the offender to a 25% discount on sentence, reducing what would otherwise have been a heavier term.
  • Where co-accused have not yet been sentenced, and their involvement in the offending is sufficiently removed from the principal offender's conduct, parity of sentencing is not a relevant consideration.
  • Wilson J declined to identify any of the comparable cases from the Public Defender's Tables as truly analogous, illustrating that sentencing for murder remains highly fact-specific even where general range guidance is available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder; maximum penalty life imprisonment)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (High Risk Offenders) Act 2007 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- KT v R [2008] NSWCCA 51
- Paterson v R [2021] NSWCCA 273
- R v Miller (No 2) [2022] NSWSC 1347
- R v Perkins [2016] NSWSC 1080
- R v Robertson; R v Hopkinson [2021] NSWSC 861
- R v Towney (No 2) [2016] NSWSC 97