New South Wales

Supreme Court

  • R v Jenkin (No 10) [2018] NSWSC 705 (18 May 2018) – New South Wales Supreme Court
    Audio visual link’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Safety and protection of witnesses’ – ‘Tendency evidence

    Charges: Murder x 1.

    Case type: Applications to adduce evidence from former partner of accused and to give evidence via video link.

    Facts: The defendant was on trial for murder of an associate. The prosecution sought to adduce evidence from the defendant’s former partner describing assaults he committed against her while he was on drugs ([5]). The prosecution sought to establish a tendency to ‘detain persons and to intimidate and physically assault them’ ([3]).

    Issues: Whether the evidence should be admitted.

    Decision and Reasoning: Most of the evidence was not admitted because it did not show that the accused had a tendency to detain persons ([8]). One paragraph of the evidence was admitted because it evidenced the defendant locking her in a room and making sure she couldn’t leave ([14]). While the evidence concerned uncharged acts of violence, the judge considered that there was little risk of prejudice given that the trial is a judge-alone trial ([14]).

    The former partner applied to give evidence via videolink after evidence from psychologists stated that giving evidence would be an extremely stressful situation. The judge accepted that using the videolink facility would reduce her trauma. The defence’s ability to assess her credibility was not significantly compromised ([18]).

  • R v TP [2018] NSWSC 369 (23 March 2018) – New South Wales Supreme Court
    Battered women’ – ‘Exposing children to violence’ – ‘Failure to protect’ – ‘Moral culpability’ – ‘People with children’ – ‘Sentencing’ – ‘Vulnerable groups

    Charges: Negligent manslaughter x 1.

    Case type: Sentence.

    Facts: The defendant’s husband, JK, pleaded guilty to murdering the defendant’s daughter, CN. The defendant was charged with failing to remove CN from violence and obtain medical treatment for her ([3]). JK inflicted horrific physical and psychological violence on the defendant and her two children for years ([4]), including tying CN to the bed and hitting her with wooden slats ([13]-[19], [36]-[38]). Expert evidence established that the defendant was suffering from post-traumatic stress disorder and severe depression caused by repeated exposure to violence ([5], [40]-[41]).

    Issue: Sentence to be imposed.

    Decision and Reasoning: Justice Hamill remarked that ‘[the] criminal law is a blunt tool in circumstances such as these’ ([8]). The defendant’s psychological conditions substantially impacted the application of the principles of sentencing, the purpose of punishment and reduced the ultimate sentence. The impact was significant because first, there was a direct link between the violence suffered by the defendant and her neglect of CN ([55]). Second, the weight afforded to general deterrence is greatly reduced ([56]-[57]). Third, the defendant’s rehabilitation through psychologists and psychiatrists would be interrupted by a custodial sentence ([58]). Fourth, a full-time custodial sentence will weigh more heavily on TP than it would on a person who does not suffer from the severe depression, grief and post-traumatic stress disorder ([59]). Fifth, the defendant was unlikely ever to offend again ([60]). The offending was aggravated by CN’s young age and fragility ([62]).

    Having considered all possible alternatives, including a fine, bond or community service order, Hammill J concluded that only a period of imprisonment was appropriate ([78]). Justice Hammill imposed a sentence of 4 years, with a non-parole period of 18 months ([79]-[80]).

    Annexed to the judgement, at [82], is a useful summary of comparable cases, although no cases had precisely the same features as this one.

  • Franklin v Commissioner of Police [2018] NSWSC 310 (14 March 2018) – New South Wales Supreme Court
    Assault’ – ‘Scope of subpoenas’ – ‘Self-represented litigant’ – ‘Systems abuse

    Charges: Assault x 1.

    Case type: Application

    Facts: The Plaintiff was charged with assaulting his wife ([2]). The Plaintiff issued a number of subpoenas to the Commissioner of Police and a hospital, seeking material including all police records for the immediate proceeding, the victim, all attendances at their home, all records of complaints proceedings instigated by the Plaintiff against the police, copies of notebooks of certain officers, and copies of all internal police communications in relation to the proceedings ([3], [28]).

    At a hearing on 5 April 2017 in a Local Court, the police objected to the subpoenas on the basis that they were too wide ([29]). The Plaintiff then issued two more subpoenas to prosecution witnesses, which were also objected to on the grounds of absence of legitimate forensic purpose and public interest immunity ([34]). At a hearing on 18 and 19 July 2017, the magistrate allowed access to some documents but refused access to others ([36]).

    Issues: The Plaintiff appealed against the Magistrate’s decision on 5 April 2017 on 5 grounds outlined at [37]. The Plaintiff appealed against the Magistrate’s decision on 19 July 2017 on 8 grounds outlined at [51].

    Decision and Reasoning: The appeal was dismissed because there was no error of law and no basis for a grant of leave for the Plaintiff to rely upon the grounds of appeal ([46], [81]).

    Justice Johnson appeared to refer to the Plaintiff being self-represented at [80]:

    I provided the Plaintiff with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the Plaintiff at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him.

  • R v Fesus (No 9) [2018] NSWSC 176 (23 February 2018) – New South Wales Supreme Court
    Factors effecting risk’ – ‘Historical offence’ – ‘Historical sentencing practice’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Strangulation

    Charges: Murder

    Case type: Sentence.

    Facts: The defendant was convicted of the 1997 murder of his 18-year-old wife. The judge found that the defendant strangled his wife after she proposed to leave him and take the children with her ([50]). The defendant denied the allegations and attempted to cover up the murder, but later made admissions to an undercover police officer in 2013 ([23]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Justice Johnson had regard to sentences imposed for similar cases in 1997 ([88]-[93]) and imposed a head sentence of 22 years’ imprisonment with a non-parole period of 16 years and 6 months ([98)). At [50]-[51] Johnson J explained:

    The Offender murdered his young wife in the course of a domestic dispute arising from her declaration that she proposed to leave him and take the children with her. Although the Offender and Jodie had lived together for about two years, they had only been married for three months at the time of her death. Jodie was a young mother who, despite her considerable life experience at that time, was barely an adult. The Offender was 26 years old at the time of the offence.

    The fact that the marriage was breaking down (after only three months) does not assist the Offender. It has been observed that killings within a domestic situation occur very often when there has been a build-up of tension between the killer and victim over a period of years: R v Whitmore [1998] NSWCCA 75 at [16]. That is not the position in this case. Here, the Offender murdered his very young wife at a time of marital strain after just three months of marriage.

    Justice Johnson also noted the lack of previous domestic violence, and the prevalence of choking in domestic violence:

    The evidence does not suggest a prior history of domestic violence on the part of the Offender towards Jodie. That said, their relationship was not a particularly long one and his response to Jodie’s desire to leave was a savage and homicidal one.

    The use of choking in the course of domestic violence is now well recognised as a gross form of control with a capacity (as occurred here) to cause death: Cherry v R [2017] NSWCCA 150 at [75].

  • R v Stephen (No 2) [2018] NSWSC 167 (6 February 2018) – New South Wales Supreme Court
    Abused person’ – ‘Court processes’ – ‘Fair hearing and safety’ – ‘Mental health’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder

    Charges: Murder.

    Case type: Application by the accused to sit outside the dock.

    Facts: The accused was on trial for murder for stabbing the victim, who was her husband. It was undisputed that at the time of stabbing, she had been subjected to severe violence at the time of the offence, and for over a year prior to the stabbing (see R v Stephen (No. 3) [2018] NSWSC 168 (20 February 2018) ). The accused made an application to sit outside the dock, next to her legal team. The Crown supported the application ([1]-[2]).

    Issues: Whether the judge should exercise his discretion to grant the request pursuant to s 34 Criminal Procedure Act 1986 (NSW).

    Decision and Reasoning: The application was refused.

    Justice Button weighed up the countervailing factors. Factors in favour of granting the application were that the accused had been on bail for many months, she was not a security risk, she suffers from post-traumatic stress disorder, and she argued that sitting in the dock will be prejudicial for the jury ([3]-[6], [9]). Factors weighing against granting the application were that the accused is not a child or a person suffering from a disability, that the dock is a traditional symbol of the gravity of the proceedings, that there is no inconvenience for the accused being in the dock, and she is charged with a very serious offence ([8], [10]-[14]).

    Justice Button concluded that there was nothing exceptional about the matter to justify the request being granted. The next day, his Honour received further submissions with more detailed evidence about the accused’s mental health issues but declined to alter the ruling ([18]).

  • R v McMaster [2017] NSWSC 1063 (16 August 2017) – New South Wales Supreme Court
    Alcohol abuse’ – ‘Bail’ – ‘Co-operation with police’ – ‘Drug abuse’ – ‘Factors affecting risk’ – ‘Firearms

    Charges: Possession of unauthorised firearm x 1; Intimidation x 1; Handling firearm while intoxicated x 1.

    Case type: Bail application.

    Facts: While under the influence of alcohol and cocaine, the defendant repeatedly called and texted the complainant, his ex-partner ([5]). He drove to her house with the gun in the passenger seat (of which she took photographs). He aimed the gun at her with his finger on the trigger. He ultimately returned to his vehicle ([3]). The defendant refused to co-operate with the police or disclose the location of the firearm ([5]). The defendant had been in custody for four months ([6]).

    Issues: Whether bail should be granted. The application was opposed by police.

    Decision and Reasoning: Judge Harrison refused bail. The decisive matter was that the complainant had not revealed the location of the firearm, so there was a real possibility that he would have unrestricted access to it if he was released. But for this matter, Harrison J would have granted bail with appropriate conditions.

  • R v Walker (No 7) [2017] NSWSC 1049 (10 August 2017) – New South Wales Supreme Court
    Hearsay evidence’ – ‘Murder’ – ‘Not unfairly prejudicial

    Charges: Murder x 1.

    Case type: Voir dire.

    Facts: The accused was on trial for murdering his de facto partner. During the relationship, neither the victim nor the police had obtained an AVO against the accused, despite evidence of injuries caused by the accused ([3]). The Crown sought to adduce hearsay evidence of statements the victim had made to her doctor. In a discussion about the victim taking out an AVO, the victim had said ‘I don’t deserve it’ and ‘don’t want to cause trouble’ ([1]).

    Issues: Whether the evidence was admissible.

    Decision and Reasoning: The evidence was admitted.

    The statements fell within an exception to the hearsay rule because they were evidence of the victim’s state of mind (s 66A of the Evidence Act 1995 (NSW)) ([5]). Nevertheless, the accused argued that the statements should not be admitted for three reasons:

    • the statements were not relevant because they could not affect an assessment of the probability of the existence of a disputed fact ([5]);
    • the statements would result in unfair prejudice, because the victim had made contradictory statements that were not admitted ([6]); and
    • the statements were simply likely to invoke sympathy for the deceased ([7]).

    However, Schmidt J held that the statements should be admitted for three reasons:

    • the statements allowed the jury to consider why the victim never sought an AVO despite complaints of violence ([9]);
    • the statements allowed the jury to consider the reliability of other hearsay representations to establish the tendency evidence led by the Crown ([9]); and
    • the doctor to whom the representations were made was available to be cross-examined (citing R v Clark [2001] NSWCCA 494, per Heydon JA at [12]).

    Therefore, the statements were not unfairly prejudicial ([11]).

  • Romero v DPP [2017] NSWSC 1190 (17 July 2017) – New South Wales Supreme Court
    Error of law’ – ‘Judicial review’ – ‘Orders’ – ‘Post-separation violence’ – ‘Procedure’ – ‘Remitted to local court

    Charges: Common assault x 1.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted of common assault against his former partner ([1]). The police applied for an apprehended domestic violence order ([3]). The Magistrate conducted the summary trial on the basis that the Magistrates Court had jurisdiction to hear the criminal proceedings and civil proceedings for apprehended violence orders concurrently, which was incorrect ([5], [15]).

    Issues: Orders to be made.

    Decision and Reasoning: The DPP conceded that the Magistrate erred in law, so the only contentious point was in relation to the orders to be made. First, McCallum J ordered the DPP to pay half of the plaintiff’s costs, since the plaintiff had been denied a hearing according to law ([22]). Second, the parties sought an order remitting the matter to a ‘differently constituted Local Court’ ([23]). Judge McCallum considered that there was no need for an order to a ‘differently constituted’ Court in the absence of apprehended bias or prejudgement ([24]). Judge McCallum remitted the matter of the assault charge to the Local Court to be heard and determined according to law.

  • R v De Beyer [2017] NSWSC 752 (13 June 2017) – New South Wales Supreme Court
    Children's evidence’ – ‘Murder’ – ‘Relationship evidence

    Charges: Murder x 1.

    Case type: Judgement on the admissibility of relationship evidence.

    Facts: The accused and deceased were married. The accused was on trial for her murder. It was the Crown case that the accused had stabbed his wife. He gave evidence that she stabbed herself. The prosecution case was circumstantial ([1]).

    Issues: Whether evidence of the accused and deceased’s relationship was admissible ([2]).

    Decision and Reasoning:

    Evidence that was admitted without objection:
    • Eyewitness evidence from the accused and deceased’s son and daughter, including witnessing the accused punching and kicking the deceased, throwing things at the deceased and threatening to kill her ([3], [17]).
    • Statements made to the police by one child, the deceased and police officers after police attendance at a violent incident ([9]-[10], [15]).
    • Parts of recordings made by the deceased of arguments between her and the deceased ([13], [25]).
    Evidence that was objected to, and admitted:
    • A conversation between the deceased and her sister, including statements that the accused would not let the deceased out of the house or have a phone “because he was scared she would call the police”, and that she would not leave him “because if he found her he would kill her” [23]. The statements were objected to on the basis that they were representations of the accused state of mind ([23]). The Court held that they were expressions of fear, and were admissible as an exception to the hearsay rule ([24]).
    • Notes and diary entries made by the deceased, which included assertions of fact about episodes of abuse, and statements about the deceased’s state of mind about the relationship ([31]). Only general statements of fact were admitted, because they were not hearsay evidence ([30]).
    Evidence that was not admitted:
    • Statements made by the deceased to her daughter that the accused attempted to drown her. The daughter only recollected these statements once she was shown the deceased’s diary. The daughter’s recollection did not appear to be firm. Therefore, Hidden AJ held that evidence was not highly probable to be reliable ([20]-[22]-[22]).
  • R v Biles (No 2) [2017] NSWSC 525 (3 May 2017) – New South Wales Supreme Court
    Aboriginal and torres strait islander people’ – ‘Murder’ – ‘Pattern of behaviour’ – ‘People affected by substance misuse

    Charges: Murder x 1.

    Case type: Sentence.

    Facts: The offender was found guilty at trial of murdering the victim, his 18-year-old girlfriend and mother of his child ([2]). Both were of Aboriginal descent ([32]). He had frequently been violent towards her over their relationship of two years ([8]). The murder occurred after both had consumed alcohol throughout the day ([13]). Six other women were in the house ([4]). The offender dragged her from the kitchen into the bedroom ([15]). There were no witnesses to the attack in the bedroom, but witnesses gave evidence that the deceased screamed for approximately twenty minutes before falling silent ([17]). When the police arrived, the bedroom was covered in blood, and she was declared dead at the scene ([21]). She had injuries consistent with multiple blows to the head ([24]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Fagan J sentenced the offender to 24 years’ imprisonment, with a non-parole period of 18 years.

    His Honour considered that the murder was in the middle of the range of objective seriousness ([31]). He considered that the deceased’s young age, vulnerability, and the fact that the offender lied to other women who tried to intervene, all contributed to the seriousness of the offence ([31]).

    His Honour examined the offender’s personal circumstances ([32]-[38]). His verbal comprehension was in the lowest 1% of the general population, a circumstance which contributes to a higher propensity to violence ([34]). He had a criminal history since 15 years old ([39]), but he proved unresponsive to good behaviour bonds and community service orders ([42]-[47]).

    His Honour considered that these offences were the culmination of a course of domestic violence (see from [52]). His Honour remarked at [52]:

    ‘The experience of courts in this State has shown that men who perpetrate violence against their female partners do not stop after one occurrence. Often they become accustomed to inflicting violence of escalating severity.’

    On the failure of the other women in the house to call the police, his Honour said [55]:

    ‘The apparent lack of a sense of urgency amongst the other women in the house … may have been due to resignation amongst them; a feeling that to some extent domestic violence is inevitable and must be endured and, perhaps, that it is a matter private to the couple, in which others should not interfere. None of that is so.’

  • R v Adams (No 6) [2016] NSWSC 1565 (4 November 2016) – New South Wales Supreme Court
    Evidence’ – ‘Judge-alone trial’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Tendency

    Charge/s: Murder.

    Hearing: Judge-alone trial judgment.

    Facts: On 27 September 2016, the accused pleaded not guilty to the murder of Mary Wallace (the deceased) on 24 September 1983. A significant part of the Crown’s circumstantial case was that the accused possessed a tendency at the time of the alleged murder to choke or strangle women in order to force them to submit to having penile/vaginal sexual intercourse with him. The Crown led evidence of three women who had alleged that they had been sexually assaulted by the accused.

    Issue/s: Whether the accused was guilty of the charge of murder.

    Decision and Reasoning: In reaching this decision, His Honour first listed the legal matters he took into account in reaching the verdict (see [320]-[359]). Most relevantly, Justice Button noted that it would have to be proven beyond reasonable doubt that at the time of offence the accused possessed a tendency to strangle women to cause them to submit to intercourse with him. This was for at least two reasons: (1) there was authority that tendency must be proven to the criminal standard in order to be taken into account (see the discussion of HML v The Queen in DJV v R at [30], and R v Matonwal & Amood at [92]). (2) In the circumstances of this case, it was agreed between parties that the alleged tendency was an indispensible intermediate fact with regard to the guilt of the accused (Shepherd v The Queen)(see [337]-[339]).

    Justice Button then stepped through his sequential reasoning for reaching the verdict of guilty (see [360]-[493]). One of the steps in this reasoning was that His Honour found that the accused possessed a tendency to rape women and to strangle them ancillary to that crime. This was after considering the evidence of three women (see [419]-[420]).

    In light of the following evidence, at [491]-[492], Justice Button held that the accused’s guilt had been proven beyond reasonable doubt:

    ‘the proven tendency of the accused to rape and strangle women; the marked similarities between his interaction with the deceased and his interactions with women whom, I am satisfied, he had raped and strangled; the fact that the deceased has never been seen again after she was in the company of the accused; the fact that, within 48 hours of his interaction with the deceased, the accused undertook an activity relating to his boot that featured the use of a hose; the fact that hairs (which shared a reasonably rare profile with those of the deceased) were seized from the boot of his vehicle, and not disputed at trial to be from the deceased; and the fact that, on any analysis, the accused had ample time to dispose of the body’.

    Justice Button concluded: ‘the accused treated the deceased very much as an object, just as he had treated three other young women’.
  • R v Silva [2015] NSWSC 148 (6 March 2015) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Manslaughter by excessive self-defence’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Sentence

    Charge/s: Manslaughter by excessive self-defence.

    Hearing: Sentencing.

    Facts: The offender stabbed and killed her partner, James Polkinghorne. The relationship had been characterised by escalating physical and verbal abuse from the deceased towards the offender. On the 13 May 2012, the deceased made increasingly threatening and abusive telephone calls and messages to the offender. That night, he went to the home of the offender’s parents, where the offender was present. He was highly aggressive and high on methylamphetamine. The facts of what followed were confused and confusing (see [29]-[36]). In summary, the deceased threatened to kill the offender, he assaulted the offender, and the offender’s brother and father intervened. They began fighting with the deceased. The offender retrieved a knife from inside and, while the offender was on top of her brother, stabbed and killed the deceased. The offender was found not guilty of murder but guilty of manslaughter.

    Decision and Reasoning: A sentence of 18 months imprisonment, wholly suspended was imposed. Hoeben CJ first made a number of factual findings. At [38] His Honour found that:

    ‘the offender stabbed the deceased with an intention to inflict grievous bodily harm because she believed her act was necessary to defend not only herself but her brother and father. However, in accordance with the jury’s verdict, the offender’s conduct was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence’.

    His Honour also had regard, with some qualifications, to the evidence of Associate Professor Quadrio, a consultant psychiatrist. In her report, Professor Quadrio concluded that during her relationship with the deceased, the offender developed chronic and complex Post Traumatic Stress Disorder (PTSD) with particular features which were described as ‘Battered Woman Syndrome’. She also concluded that the offender continued to suffer from PTSD. Hoeben CJ found at [40]:

    ‘In the absence of any psychiatric opinion to the contrary, I would normally accept such a diagnosis. In this case I am not prepared to do so. This is because the diagnosis is based upon significant pieces of history from the offender which are different to the evidence at trial and to what the offender said in her ERISP. I am prepared to accept that the offender currently suffers from PTSD. The events of the night of 13 May 2012 would of themselves be sufficient to bring about such a condition and there is no reason to doubt the existence of the symptoms which the offender described following the deceased’s death. What I am not prepared to accept is that the Post Traumatic Stress Disorder was due to the offender’s relationship with the deceased and was in existence before the deceased’s death’.

    However, His Honour did accept that the offender stabbed the deceased when she was in a highly emotional and hysterical state (see [41]-[43]).

    In reaching an appropriate sentence, Hoeben CJ took into account a number of considerations. These included that specific deterrence were not relevant in light of the offender’s rehabilitation and the unlikelihood of re-offending (see [58]). General deterrence was not accorded substantial weight in light of exceptional factual circumstances (the deceased had made escalating threats of violence approaching the offender’s home and the offender’s state of mind was affected by being already brutally assaulted and witnessing the struggle between her family members and the deceased) (see [59]). The objective seriousness was at the lower end of the range as was the offender’s culpability (see [60]-[61]).

    As against these matters, Hoeben CJ had regard to the sanctity of human life, the need to denounce the conduct of the offender and hold her accountable for her actions (see [62]).

    The offender successfully appealed against her conviction to the Court of Appeal. See Silva v The Queen [2016] NSWCCA 284 (7 December 2016).
  • DPP (NSW) v Lucas [2014] NSWSC 1441 (20 October 2014) – New South Wales Supreme Court
    Damaging property’ – ‘Evidence’ – ‘Intentionally or recklessly damaging property’ – ‘Intimidation’ – ‘Relationship/context evidence

    Charge/s: Intentionally or recklessly damaging property, intimidation.

    Appeal Type: Crown appeal against the dismissal of the charges.

    Facts: The male defendant had been in a domestic relationship with the female complainant that had ended some years prior to the offence. Since that time, the complainant had taken steps to conceal where she was living with her children from the defendant. He found where they were living and was permitted to have contact and access to children. One evening, the defendant turned up to the complainant’s home uninvited and unannounced. She locked herself and the children inside the house while the defendant was yelling and screaming and making threats, including threatening to deflate the tyres on her car. It was alleged that he then deflated a tyre on her car. These charges were dismissed by a magistrate.

    Issue/s: One of the grounds of appeal was that the magistrate erred in excluding evidence of a ‘pattern of violence’, such evidence being relevant to the intimidation charge under s 7(2) of the Crimes (Domestic and Personal Violence) Act.

    Decision and Reasoning: This ground of appeal was dismissed but the appeal was upheld on other grounds (failure to give reasons and error as to what constituted damage). Examination of the transcript indicated that the magistrate’s approach was that the prosecutor should lead evidence of the actual incident itself before leading any other evidence under s 7(2), if it was then considered necessary (See [24]-[30]).

  • R v Gittany (No 5) [2014] NSWSC 49 (11 February 2014) – New South Wales Supreme Court
    Character evidence’ – ‘Following, harassing, monitoring’ – ‘Moral culpability’ – ‘Murder’ – ‘Objective seriousness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentencing hearing.

    Facts: The offender was found guilty for the murder of his female de facto partner after a judge only trial. While the relationship was, at times, loving and happy it was also tumultuous as the offender was a jealous and possessive partner. The offender scrutinised the victim’s conduct openly and covertly, keeping track of her movements through surveillance cameras and secretly monitoring her mobile phone. On 30 July 2011, the victim had decided she was leaving the offender and attempted to leave their apartment. She was physically dragged back into the apartment by the offender and sixty-nine seconds later she fell to her death from the balcony. McCallum J was satisfied beyond reasonable doubt that, in a state of rage, the offender carried the unconscious complainant to the balcony and ‘unloaded’ her over the edge.

    Decision and Reasoning: A sentence of 26 years imprisonment with a non-parole period of 18 years was appropriate in the circumstances. McCallum J took into account of a number of considerations in imposing this sentence. Her Honour assessed the objective seriousness of the offence. McCallum J was satisfied beyond reasonable doubt that the act of unloading the complainant’s body over the balcony was done with intent to kill and that, although unconscious, the complainant was undoubtedly in a state of complete terror in the last moments before her death (See [16]-[18]).

    A further relevant issue in assessing objective seriousness was whether the killing was planned or premeditated. The Crown tried to adduce evidence establishing that the offender had long had in mind the possibility of committing such an act, and making it look like suicide, in the event of her leaving him. Although witness testimony substantiating this assertion was excluded for its prejudicial content, other evidence was relevant to assessing the offender’s state of mind. During the relationship, the offender engaged in an extraordinary degree of manipulative behaviour and while he was not to be punished for this conduct nor did this conduct aggravate the offence, it did inform the state of mind in which he committed the offence. McCallum J was not satisfied that the offence was planned or premeditated in the traditional sense; however, she was satisfied that the offender must have anticipated the prospect that he would fly into a rage if ever she were to leave him (See [19]-[39]). Her Honour concluded:

    ‘In my view, that history informs the degree of moral culpability of the offence. The arrogance and sense of entitlement with which Mr Gittany sought to control Lisa Harnum throughout their relationship deny the characterisation of his state of mind in killing her as one of complete and unexpected spontaneity. By an attritional process, he allowed possessiveness and insecurity to overwhelm the most basic respect for her right to live her life as she chose. Although I accept that the intention to kill was formed suddenly and in a state of rage, it was facilitated by a sense of ownership and a lack of any true respect for the autonomy of the woman he claimed to love’ at [40].

    In sum, the objective seriousness of the offence committed was not above the middle of the notional range, having regard to the fact that the murder was not premeditated or planned. However, the offence was of sufficient seriousness that the standard non-parole period of twenty years was to be regarded as a strong guide in this case (See [43]).

    McCallum J also noted the offender’s personal circumstances, including a troubling prior conviction for malicious wounding (See [44]-[59]) and noted that the complainant was vulnerable. She took into account good character references provided (noting though the contradiction posed by the way he treated the complainant) but was not persuaded that any prospect of rehabilitation existed in this case (See [65]-[74]).

    This case was unsuccessfully appealed to the New South Wales Court of Appeal. See Gittany v R [2016] NSWCCA 182 (19 August 2016).

  • R v Yeoman [2003] NSWSC 194 (21 March 2003) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Difficulty leaving an abusive relationship’ – ‘Expert evidence - psychosocial report - specific experience in drug and alcohol related domestic violence issues’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Where the victim is an offender’ – ‘Women

    Charge/s: Manslaughter.

    Hearing: Sentencing.

    Facts: The female offender had lived with her male de facto partner, the deceased, for 25 years (since she was 17 years old). The deceased had been violent towards the offender throughout their relationship, including hitting her in the eye with a baseball bat, but she did not have the means to leave the relationship. The deceased would often taunt the offender and dare her to stab him. They both suffered from alcoholism. One evening, the offender was heavily intoxicated and stabbed the deceased in the chest, killing him. At the time, she did not intend to kill him nor did she realise he was dead and she went to bed. The next morning she called the police and made full admissions. The offender’s recollection of events was imperfect because of her intoxication.

    Decision and Reasoning: Buddin J had extensive regard to a psychological report prepared by Ms Danielle Castles, who had 17 years’ experience working in the social welfare field, with particular expertise about drug and alcohol issues and domestic violence (See [32]-[35]). Ms Castles commenced her report by explaining the nature of domestic violence and stated at [32] that:

    ‘domestic violence is the term used to describe the violence and abuse perpetrated upon a partner in a marriage or marriage like relationship. It is essentially the misuse of power and the exercise of control by one person, usually the man, over another, usually the woman. “Women experiencing domestic violence are often subjected to physical, sexual, emotional/psychological, social and economic abuse. Abuse may be overt (physical violence) or it might be deceptively subtle (emotional abuse). It is the interplay between making the woman fearful and reducing her self-esteem which results in the abuse having significant and prolonged effects on the woman.”

    The effects of domestic violence are such that women in violent relationships are convinced they are hopeless, that they need to be dependent upon the abuser and could not possibly survive without him. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy’.

    Ms Castles then set out the ways in which domestic violence impacted upon the offender here (See [33]-[34]).

    Buddin J ultimately found that the offender’s criminality was at the lower end of the scale of culpability of an offence of this kind i.e. non-intentional homicide in circumstances of tragic misadventure. Her intention was no more and no less than to engage in a desperate and objectively dangerous gesture, without intending any real harm or worse to the deceased. This, in conjunction with the very powerful subjective case advanced on behalf of the offender, meant that an exceptional sentence of a good behaviour bond for four years was appropriate, notwithstanding the fact that a life was taken (See [50]). The subjective factors that mitigated sentence included that ‘the offence took place against the background of continuing domestic violence over a prolonged period of time, the impact upon her of which cannot, for the reasons advanced by Ms Castles and others, be underestimated’ (See [45]). Buddin J also derived assistance from cases involving ‘battered spouse or partner syndrome’ (See [48]).