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Supreme Court 6 July 2000

R v Dargin

[2000] NSWSC 710

Sexual offencesAssault & violenceHomicideTheft & property
CRIMINAL LAW & PROCEDURE SENTENCING MURDER INTENT OF GRIEVOUS BODILY HARM SEXUAL ASSAULT GUILTY PLEA

Citation: R v Dargin [2000] NSWSC 710
Court: NSW Supreme Court (Criminal Division)
Date: 6 July 2000
Judge(s): Ireland AJ

Background

The offender, a 24-year-old Aboriginal man, pleaded guilty to the murder of a 72-year-old woman in Condobolin on 30 September 1998. The victim was found dead in her home by her husband that evening, having suffered catastrophic injuries to her head, face, and neck. DNA evidence, bloodstained clothing, and admissions made by the offender to acquaintances formed the foundation of a very strong Crown case.

The court found that the offender entered the victim's home intending to steal money, delivered a series of heavy blows to her head and face, and applied force to her neck. He was also found to have sexually assaulted the victim during the same episode. After the attack, he purchased alcohol with money stolen from the victim's purse.

At sentencing, the offender asked the court to take into account the contemporaneous aggravated sexual assault on a Form 1 basis, meaning the additional offence was considered in fixing the overall sentence rather than attracting a separate penalty. The Crown consented to that course.

  • What were the facts surrounding the murder, to be found to the criminal standard of proof?
  • What mental intent attended the murder, given evidence of intoxication?
  • How should the offender's Aboriginal background be taken into account under the principles in R v Fernando?
  • Were there special circumstances justifying a departure from the statutory non-parole ratio?
  • What was the appropriate head sentence and non-parole period for murder, having regard to the guilty plea, the Form 1 sexual assault, intoxication, background, and conditions of custody?

Decision

Ireland AJ was satisfied beyond reasonable doubt that the offender entered the victim's home with an intent to steal or rob, inflicted the fatal injuries, and also sexually assaulted her. The murder was found to have proceeded with intent to cause grievous bodily harm rather than intent to kill, which was taken into account as a mitigating factor going to the objective gravity of the offence, though the offence remained very serious.

The offender's significant intoxication at the time was relevant but did not substantially reduce his moral culpability, given the nature and extent of the violence inflicted on a 72-year-old woman in her own home. His guilty plea was acknowledged as a mitigating factor, as was his difficult personal history, including an unsettled childhood, limited education, and a background reflecting social disadvantage consistent with the principles discussed in R v Fernando.

The court identified special circumstances warranting a variation from the standard statutory ratio between the head sentence and the non-parole period. Those circumstances included the offender's youth, the more onerous conditions of serving his sentence on strict protection, his background, and the risk of institutionalisation. A longer supervision period on parole was therefore considered appropriate to support rehabilitation upon release.

General deterrence was afforded somewhat reduced weight given evidence that the offender's intellectual functioning operated at a level where that consideration carried less prominence, consistent with the approach in R v Champion.

Orders Made

  • The offender was sentenced to 19 years imprisonment, commencing 1 April 1999 and concluding 31 March 2018.
  • A non-parole period of 14 years was set, expiring 31 March 2013.
  • The earliest date of eligibility for parole was fixed at 1 April 2013.
  • The aggravated sexual assault was taken into account on a Form 1 basis.

Key Takeaways

  • Ireland AJ applied the R v Fernando principles, recognising that an offender's Aboriginal background and associated social disadvantage are matters a sentencing court must take into account, without providing an excuse for serious criminal conduct.
  • Where an offender's intellectual functioning is limited, general deterrence may properly be accorded reduced weight in the sentencing exercise, following R v Champion.
  • Special circumstances justifying a variation from the statutory non-parole ratio can arise from a combination of factors, including youth, the conditions under which a sentence is served (such as strict protection), and the degree of supervision needed upon release.
  • A Form 1 procedure allows a contemporaneous offence to be taken into account in fixing the overall sentence, rather than attracting a separate consecutive term.
  • Significant intoxication at the time of a homicide may bear on the finding of intent and constitute a relevant mitigating factor, while not necessarily reducing moral culpability substantially where the violence inflicted was grave and sustained.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW)
- Criminal Procedure Act 1986 (NSW), s 161
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Fernando (1992) 76 ACrimR 58
- R v Champion (1992) 64 ACrimR 244
- R v Morgan (1993) 70 ACrimR 368
- R v Dodd (1991) 57 ACrimR 349
- R v Geddes (1936) 36 SR(NSW) 554
- R v Isaacs (1997) 90 ACrimR 587
- R v Coleman (1990) 47 ACrimR 306
- R v Previtera (1997) 94 ACrimR 76
- R v Bossie (NSWSC, Studdert J, 16/4/92, unreported)
- R v Broughton (NSWSC, Smart J, 30/5/94, unreported)
- R v Duke (NSWSC, McInerney J, 15/9/94, unreported)
- R v Lorenzo (NSWCCA, 22/5/95, unreported)
- R v Sharpe (NSWSC, Wood J, 9/9/92, unreported)
- R v Sullivan (NSWSC, Simpson J, 14/7/94, unreported)
- R v Veitch (NSWSC, Hunt J, 19/3/91, unreported)