New South Wales Supreme Court CITATION : R v Benjamin Walkington [2003] NSWSC 517 revised - 13/06/2003 HEARING DATE(S) : 20/05/03 - 29/05/03 JUDGMENT DATE : 6 June 2003 JUDGMENT OF : Newman AJ at 1 DECISION : 1) The term of the sentence to be 18 years to date from 29 March 2002 and expiring on 28 March 2020; 2) A non-parole period of 12 years commencing on the 29 March 2002 and expiring on 28 March 2014 when the prisoner will be eligible for release on parole. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing and Procedure) Act 1999 R v Cardoso [2003] NSWCCA 15 CASES CITED : R vFernando (1992) 76 A Crim R 58 R v Oinonen [1999] NSWCA 310 PARTIES : The Crown Benjamin Walkington - Accused FILE NUMBER(S) : SC 70112/02 COUNSEL : P. Barnett - Crown C. Davenport - Accused SOLICITORS : S E O'Connor - Crown Western Aboriginal Legal Service - Accused IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION Newman AJ Date 6 June 2003 70112/02 REGINA V BENJAMIN WALKINGTON SENTENCE 1 HIS HONOUR: The prisoner Benjamin Walkington has been found guilty by a jury of the murder of his partner Samantha on 29 March 2002 at 'Buttabone Station', near Warren. The verdict followed a trial of eight days following the prisoner pleading not guilty to murder but guilty of manslaughter. 2 The maximum penalty stipulated by the Crimes Act 1900 is imprisonment for life. Because the murder was committed prior to 1 February 2003 the repealed s44 of the Crimes (Sentencing and Procedure) Act 1999 is applicable in this case. 3 It is now my duty to find the facts of the case. In so doing I shall use the criminal standard of proof, that is proof beyond reasonable doubt. 4 The prisoner and the deceased had been living in a de facto relationship for some 15 years before the date of the murder, 29 March 2002. Five children were born of the union. While a de facto relationship, the deceased victim had taken the prisoner's surname. The prisoner is of Aboriginal extraction whereas the deceased was of European extraction. 5 The relationship plainly enough had its stormy moments (the prisoner was convicted of an assault upon the deceased in 1997) but by and large was regarded by family observers as a successful relationship. However, by the end of 2002 the relationship had deteriorated. At about that time the prisoner formed the view that the deceased had entered into a sexual relationship with a fellow worker at 'Buttabone Station', one William Andrew McKean ('McKean'). On the evidence before me that suspicion was unfounded until the night before the murder. On that night the deceased had sexual intercourse with McKean. In evidence he stated (and I might say accept his evidence) that the deceased told him that as she had been wrongly blamed for having an affair with him, she might as well have coition with him – which then happened. 6 On the evidence at the trial it appears that the prisoner had a prodigious appetite for beer – consuming on a regular basis up to ten 750ml bottles of his home brew. That beer was found to have a strength of 5.2 percent - which I note is slightly higher than most full strength beers. The deceased had complained to relatives and friends about the prisoner's beer consumption. It may well be that his drinking habits were the real reason for the deterioration of his relationship with the deceased, rather than any extra-union activities on her behalf. 7 The union had deteriorated to such a degree that on Sunday, 24 March 2002 the deceased went to stay with her father and stepmother at Coonamble. Following, as I find, threats made by the prisoner, the deceased returned to 'Buttabone' with her children. On her return she advised the prisoner of her desire to end her union with the prisoner. 8 At this time the prisoner had obtained leave from his employer to deal, amongst other things, with his personal problems. On 28 March 2002 the prisoner took himself in the late afternoon to the town of Warren where he booked himself into a local motel. He then spent the evening drinking at two local hotels of the town, consuming, as appears to be his regular want, a large amount of full strength beer. 9 After the hotels had closed, he returned to the motel into which he had booked and decided not to stay. Despite the inclement weather (it was raining heavily at the time) the prisoner decided to return to 'Buttabone Station'. I find that he came to that decision because he was suspicious that McKean might haven been present at 'Buttabone' – no doubt a suspicion enhanced by the effect of his ingestion of beer during the night. However, the effect alcohol had upon him on that night did not inhibit his capacity to plan his actions, nor prevent him forming the requisite intent for the crime of which he has been convicted. 10 On arriving at 'Buttabone' he parked his vehicle some distance from his home. I find he did this, amongst other reasons, so that his approach to the premises would not be detected by those within. His suspicion was that he would find McKean's vehicle outside the premises and McKean inside, in bed with the deceased. He approached not from the front of the house but from the rear. On finding the back door locked (which was unusual) he entered the house through the front door. He claimed in evidence that he was confronted on entry by the deceased. He claims that she then told him that she had intercourse with McKean "the other night". He claimed that she then threatened him with a knife and it was that action which led to him grappling with her. He claimed that he had no recollection of events thereafter until he remembered being on top of her and saying, "you're dead". This account was in my view, and in my view properly so, rejected by the jury. What I find did happen was that the prisoner on entering the house engaged in a brutal attack upon the deceased using no less than three knives to inflict 23 stab wounds to her body. Such was the vehemence of his attack that one knife broke, leaving its blade embedded in his victim's neck, remaining there until it was removed at the post-mortem examination by Dr Sugo. 11 The knife, which the prisoner claimed in evidence his victim brandished prior to him grappling with her, was said by him to be his boning knife. That knife was found by police on the dining room table when they carried out their investigation. The prisoner deposed that he washed the knife after the fracas and placed it on the table. When Vivien Beilby, a forensic biologist, analysed the matter adhering to its blade, she found the matter consisted of the blood of both the deceased and the prisoner. However, her evidence indicated that the prisoner's blood was superimposed over that of the deceased. In other words, the deceased's blood came onto the blade before the prisoner's. Soon after his attack was completed the prisoner claimed to his neighbours Mr and Mrs Hayden that he had attempted suicide by stabbing himself. Indeed he had injuries to his torso which were obvious and which were subsequently treated by Dr Farnbach at Warren Hospital which were consistent with him having self-inflicted those wounds. It follows that even if the deceased did, as the prisoner claimed, have the boning knife in her hand before his attack commenced, he had disarmed her and then used the knife to stab her. 12 However, I do not accept that the prisoner's account in evidence of what preceded his assault was a truthful one. First, because of his account of seizing the deceased, spinning her around, then plucking another knife from a ceramic pot on the kitchen sink, which he used to stab her in the thigh, was an unlikely scenario both in terms of dynamics and logistics. Secondly, his daughter Sianne's evidence that when she saw her parents on the floor, having been disturbed by the noise coming from that part of the house, she did not see any knife present and that is contra-indicative of the prisoner's account. While it is true, as the prisoner's counsel submitted, there were no injuries to the deceased's neck found at post mortem consistent with her being choked (which was Sianne's account of what she saw) this does not mean that Sianne's account is suspect. I find this because it was Sianne's evidence that when she returned to her parents' house after alerting neighbours to the fracas, she saw a knife near her mother's body. While she described, perhaps inaccurately, that knife as a butter knife, there is no doubt that there was a knife on the floor adjacent to the body when the police arrived. This latter knife was one of the three used by the prisoner in his attack upon the deceased as Ms Beilby's analysis demonstrated. 13 My view as to the credibility of the prisoner's evidence at the trial are reinforced by the vagaries of the history received by the forensic psychiatrist, Dr William Lucas, whose report was tendered in the proceedings on sentence. Dr Lucas saw the prisoner twice, first on 11 July 2002 and second on 3 October 2002. At the first interview the prisoner gave Dr Lucas a history which he summarised as follows: At the first interview Mr Walkington told me that he could only recall "bits and pieces" of the circumstances leading to the death of his wife. He did not recall leaving the hotel or driving home to the station but he remembered sitting beside his wife's bed talking and seeing the police come coming up the driveway. He had no memory of assaulting his wife. However at the second interview, three months after the first, Mr Walkington gave a detailed account of the day in question including the death of his wife. 14 At the second interview the prisoner gave a fuller history which up to the point when violence occurred in the house was, by and large, consistent with the evidence he gave at the trial. However his account to Dr Lucas of how violence commenced is different from that given at the trial. Dr Lucas records the prisoners account of how violence commence and how it continued as follows: He told me that at that stage "I really don't know – how it happened – she had my black boning knife". He went on to say that they were standing in the kitchen and "I got hold of a knife too". He emphasised to me tat she was the first to pick up a knife. He was standing next to a drawer and what he picked up was "only a small knife." He said, "this part I don't understand, we must have struggled at one stage". He remembered holding her hand and fingers and trying to keep her knife away. He had his left hand up. Somehow they spun around and she was stabbed in the left side, "I think". I asked if he had stabbed her and he said, "I must have. There or against the wall". He indicated the position of the wall. He indicated from then until he was on his knees his recollection was either unclear or absent. When he was on his knees he had the big boning knife in his hand, the one that she had previously. He told me, "I'd stabbed her and said, 'your fucking dead'". He thought he had stabbed her in the chest. This episode took place entirely in the kitchen. Mr Walkington said he then rose and washed the knife, he did not know why... 15 I note that in that account he made no mention of taking the knife from a ceramic pot – he says he was standing next to a drawer. 16 Second, he claimed that the struggle commenced after he had picked up a knife whereas at the trial his evidence was that he plucked a knife from the ceramic pot after the struggle had commenced. 17 Dr Lucas explained the accused earlier amnesia as follows: Mr Walkington has now given me a very detailed account of his movements on the day and night in question, his thoughts, and to some extent his emotions, and his reasons for certain actions. One cannot be definite about the reasons for his stated amnesia at the time of the first interview. His present ability to recall events in detail indicates it is not due to failure to register or retain memories but to a failure to recall them or to reveal what he could recall. The stated amnesia cannot be filly attributed to intoxication or depression although these may contributed, but the cause was certainly psychological. Because of the highly traumatic nature of the events Mr Walkington would have had good reason to suppress the memories consciously or unconsciously. Dissociative amnesia with later recall is a possibility. The accuracy of his recovered memories should be assessed in the light of the evidence available. 18 That, of course, is my task. Whatever the reason for the prisoner's amnesia the fact is that the discrepancies between his account to Dr Lucas and his evidence at the trial do not give credence to his overall account of what happened after his arrival at 'Buttabone'. 19 One matter which the prisoner claims to have no recollection involves Mr Nigel Hayden's evidence that he saw the prisoner kick the deceased in the head twice after the prisoner and Mr Hayden entered the house after the earlier violence and discussions held outside the house by the prisoner and Mr Hayden. Dr Sugo at post-mortem found head injuries on the deceased which were consistent with Mr Hayden's account of the accused kicking his then deceased partner in the manner which Mr Hayden both deposed and demonstrated at the trial. I found Mr Hayden to be a truthful and reliable witness. I accept his evidence that at the time he kicked the deceased's head he was saying words to the effect that the deceased wanted to take the kids off me, but she won't take them off me now. 20 The action of the prisoner in kicking the head of his deceased victim I find to be an aggravating feature of the crime he committed – it involved an act of gratuitous cruelty contrary to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999. To treat the deceased's body in such a callous manner is an action which would offend the sensibilities of any right-minded member of the community. 21 A more significant aggravating feature is the fact that the prisoner used no less than three knives in his attack upon the deceased. Section 21A (2) (c) of the Crimes (Sentencing Procedure) Act 1999 is thus applicable. 22 His statement relating the deceased taking his children from him is in turn indicative of his reason for doing what he did – not because he was provoked, nor because he was acting in self-defence, but from a desire to possess. 23 I thus find the objective circumstances of the murder of Samantha Walkington by the prisoner to be at the upper end of culpability in a crime where even a lower order of culpability is serious. 24 I turn then to the mitigating features which are stipulated by the Crimes (Sentencing Procedure) Act 1999 (hereinafter referred to as 'the Act'). 25 Counsel for the accused submitted that subsections 21A(3) (b), (c), (e), (f), (g), (h), (i), (k) and (l) of the Act are applicable here. Insofar as the prisoner bears any onus of establishing these matters of mitigation, that onus requires merely that the court is satisfied on a balance of probabilities. 26 Dealing with those matters in turn: (b) The offence was not part of a planned or organised criminal activity. 27 I agree with this submission and have taken this matter into account. (c) The offence was provoked by the victim. 28 The jury found otherwise. However counsel submitted that the court could still take into account a degree of provocation, having regard to the prisoner's evidence relating to the deceased's relationship with McKean and the remark she is said to have passed immediately prior to the attack taking place. 29 Earlier in these remarks I observed that the prisoner's lethal actions were caused not by provocation but by his possessive desire for his children thus do not find that provocation is a mitigating factor here. (e) The offender does not have any previous convictions. 30 While the prisoner did have a conviction for an assault upon the deceased in 1997, I accept the submission that this subsection is applicable and taken this matter into account. (f) The offender was a person of good character. 31 The prisoner has an excellent work record. A qualified motor mechanic he was treated as a treasured employee by the management of 'Buttabone Station'. Otherwise he was highly regarded by those with whom he associated. I am satisfied that the prisoner is entitled to have this matter taken into account, which I have done. (g) The offender is unlikely to re-offend. 32 I hold that this is so, and have taken this matter into account. (h) The Offender has good prospects of rehabilitation. 33 Certificates indicating that the prisoner has made good progress while in gaol were tendered on his behalf. Having regard to his excellent work history and the attitude he has demonstrated while incarcerated, I find that he has satisfied this subsection and have taken this matter into account. In this regard, I have also, as I have done in general terms in relation to all the factors relating to the sentencing process, specifically taken into account his age. He is now 37, having been born on 4 September 1965. (i) The prisoner has shown remorse for the offence. 34 He certainly showed none immediately after the offence when he kicked his victim's head. Indeed he stated to Mr Hayden that his chief concern was that he was going to gaol, not that he was remorseful about his actions. 35 It was put that his plea of guilty to manslaughter was evidence of remorse – albeit he maintained his denial that he was guilty of murder – as was his right. In that the plea to manslaughter involved an admission that he killed the deceased it does evidence some contrition on the prisoner's part. He made a somewhat belated and unconvincing apology for his actions to his children and the deceased's relatives while giving evidence on sentence. While I find he does have a degree of remorse for his actions this is not a matter I have taken heavily into account in assessing sentence. (k) A plea of guilty by the offender. 36 As I have already observed the prisoner's plea (and has always been) that he was not guilty of murder but guilty of manslaughter. 37 Let me say at once that I find that the plea of manslaughter was of little utility in this case. While the admission it contained, that is that he killed the deceased, made the Crown's case in proving its case an easier one, it is difficult to see how the evidence at the trial was shortened as a result of his plea. 38 I have already dealt with the question of what extent his plea of guilty of manslaughter is indicative of remorse on his behalf. 39 However, it was submitted on his behalf that the decisions of the Court of Criminal Appeal in R v Oinonen [1999] NSWCA 310 and R v Cardoso [2003] NSWCCA 15 are authority for the proposition that I should discount on account of this. I disagree. 40 In both Oinonen and Cardoso the accused was found to be not guilty of murder but guilty of manslaughter. Here the prisoner has been found guilty of murder. In Oinonen Grove J who delivered the lead judgment of the court said (at paras 15-18): It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of section 439 of the Crimes Act . There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted. 41 Here the prisoner's plea of guilty did not match the crime for which he was ultimately convicted. Thus this case is to be distinguished from both Cardoso and Oinonen. In Cardoso Hidden J (with Greg James J agreeing) followed Grove J's reasoning in Oinonen. 42 His plea thus does not entitle him to a discount on account of any utilitarian value. (l) Degree of pre-trial disclosure. 43 In this regard counsel relied upon the prisoner's early plea of guilty of manslaughter. This I have found of no utilitarian value, thus the prisoner is not entitled to any discount under this head of mitigation. 44 Additionally, counsel for the prisoner submitted that I should take into account that this will be the first time that the prisoner has been sentenced to a term of imprisonment and thus satisfies the test for special circumstances under the Act. I accept that submission and have accordingly adjusted the sentence I am about to impose. 45 Counsel for the prisoner conceded, rightly in my view, that although the prisoner is of Aboriginal extraction, the factors on sentencing referred to in R v Fernando (1992) 76 A Crim R 58 are not applicable in this case. The reason why this is so is that the prisoner did not suffer from the privations which burden the lives of so many Aboriginal people. He, as has already been noted, is a qualified motor mechanic who had enjoyed in full employment in his adult life. Furthermore, his father, who gave evidence at the trial, impressed as a responsible person who presented an excellent role model for his son. One of the many tragic circumstance of this case is that the prisoner who had succeeded in dealing with life in the general community as well as he had, committed the appalling crime which brought him before this court. 46 I have read the victim impact statements made by family members. They demonstrated the devastating effect this crime has had upon their lives and I express to them the sympathy of this court. However, the law does not allow those statements to be used in the assessment of the prisoner's sentence by this court and I have thus not used them in that regard. 47 As I have already mentioned, this case falls within the ambit of the repealed s44 of the Act. That section requires the court to: (a) set the term of the sentence; (b) set a non-parole period of not less than three-quarters of the term unless, as I have found, special circumstances exist. 48 Because of the objective gravity of the circumstances of the offence and having taken into account the matters I have found to be in mitigation, I set the term of the sentence to be 18 years to date from 29 March 2002 (the date when the prisoner was taken into custody) and expiring on 28 March 2020. Taking into account the special circumstances which I have found, I set a non-parole period of 12 years commencing on the 29 March 2002 and expiring on 28 March 2014 when the prisoner will be eligible for release on parole. ********* Last Modified: 06/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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