Citation: R v Benjamin Walkington [2003] NSWSC 517 revised - 13/06/2003
Court: NSW Supreme Court
Date: 6 June 2003
Judge(s): Newman AJ
Background
The accused, a qualified motor mechanic, was convicted by jury of murdering his de facto partner of 15 years at a rural station near Warren, NSW, on 29 March 2002. The couple had five children together. In the months before the killing, the relationship had deteriorated significantly, with the accused becoming suspicious (largely without foundation until the night before the murder) that his partner was having an affair with a co-worker.
In the early hours of 29 March 2002, the accused returned to the property after a night of heavy drinking in Warren. He had parked away from the house to avoid detection. He entered through the front door and inflicted 23 stab wounds on his partner using three separate knives, one of which broke and left its blade embedded in the victim's neck.
The accused pleaded not guilty to murder but guilty to manslaughter. The jury rejected his account that the deceased had threatened him with a knife and that he had no memory of the attack, and returned a verdict of murder. Newman AJ then proceeded to sentence.
Legal Issues
- Whether the accused possessed the requisite intent for murder, notwithstanding his intoxication at the time of the offence
- Whether the accused's guilty plea to manslaughter carried any utilitarian value warranting a sentencing discount
- Whether the principles from R v Fernando concerning the sentencing of Aboriginal offenders applied in these circumstances
- Whether special circumstances existed under the then-applicable sentencing legislation to justify a non-parole period less than three-quarters of the head sentence
Decision
Newman AJ found that, although the accused had consumed a large amount of beer during the night, his intoxication did not impair his capacity to plan his actions or prevent him from forming the requisite intent for murder. The court pointed to the accused's deliberate approach to the house, his parking away from the premises to avoid detection, and the nature and ferocity of the attack as demonstrating purposeful conduct.
The accused's account of a confrontation in which the deceased threatened him with a knife was rejected. Forensic evidence, including blood layering on the knife and the testimony of the accused's daughter, contradicted the version he gave. The court also found inconsistencies between the account given to the forensic psychiatrist and the account given at trial.
The guilty plea to manslaughter was found to have no utilitarian value in sentencing. Because the jury had returned a murder verdict after a contested trial, the plea did not result in any savings of court time or resources, and no discount was applied on that basis.
Newman AJ declined to apply the Fernando principles relating to the disadvantage experienced by many Aboriginal people. The accused had not suffered the kinds of social deprivation those principles address. He was in stable full-time employment, had a skilled trade, and had a father who presented as a strong and responsible role model. Special circumstances were found, however, because this was the accused's first sentence of imprisonment, justifying a reduction in the non-parole period below the statutory three-quarter minimum.
Orders Made
- Head sentence of 18 years imprisonment, commencing 29 March 2002 and expiring 28 March 2020
- Non-parole period of 12 years, commencing 29 March 2002 and expiring 28 March 2014, at which date the prisoner becomes eligible for release on parole
Key Takeaways
- Heavy intoxication does not automatically negate the requisite intent for murder where the surrounding conduct demonstrates deliberate planning and purposeful action.
- A guilty plea to a lesser charge (here, manslaughter) carries no utilitarian value for sentencing purposes where the jury proceeds to convict on the higher charge after a contested trial.
- The Fernando principles apply specifically to Aboriginal offenders who have experienced the social disadvantage and deprivation common in many Aboriginal communities; they do not apply automatically to all offenders of Aboriginal background.
- Special circumstances sufficient to reduce the non-parole period below the statutory three-quarter threshold were found where the accused was serving his first term of imprisonment.
- Victim impact statements were received and acknowledged by the court with expressed sympathy, but the applicable law at the time did not permit them to be used in assessing the quantum of sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing and Procedure) Act 1999 (NSW), s 44 (repealed)
Cases:
- R v Cardoso [2003] NSWCCA 15
- R v Fernando (1992) 76 A Crim R 58
- R v Oinonen [1999] NSWCA 310